Madras High Court
V.Natanasabapathy vs Vsigmaa Softech Solutions Private ...
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
RESERVED ON : 30.01.2017
DELIVERED ON : 15.02.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
C.S.No.373 of 2011
V.Natanasabapathy .. Plaintiff
vs.
1. Vsigmaa Softech Solutions Private Limited
formerly known as M/s. E.Softtek Private Limited)
Rep.by its Managing Director
C.Venkatesh Sivananth Buildings
Plot No.C- 46B, Door No.X-41
2nd Avenue, Anna Nagar, Chennai -40
2. C.Venkatesh
3. Mrs.Viji Venkatesh
Director
VSIGMAA SOFTECH SOLUTIONS
PRIVATE LIMITED
Sivananth Buildings
Plot No.C-46B, Door No.X-41
2nd Avenue, Anna Nagar, Chennai -40
4. M/s. India Bulls Housing Finance Limited
No.20, Apex Chamber, 3rd Floor,
Sir Theagraraya Road
T.Nagar, Chennai - 600 017 .. Defendants
Civil Suit filed under Order IV Rule 1 of CPC read with Order VII Rule 1 of CPC Rules praying for the following judgment and decree against the defendants.
a) Directing the defendants jointly and severally to pay a sum of Rs.52,34,560/- (Rupees Fifty Two Lakh Thirty Four Thousand Five Hundred and Sixty only) and subsequent rentals dues till date actual payment together with interest that may be imposed by the Income Tax Authorities in future.
b) Directing the defendants to pay the costs of the suit.
For Plaintiff : Mr.M.Selvaraju
For D1 to D3 : No Appearance
For D4 : Mr. Sakthivel for
Mr. J.Sivanandaraaj
J U D G M E N T
The suit is filed for recovery of arrears of rent of Rs.52,34,560/- from the defendants 1 to 3 jointly and severally.
2.The brief facts of the case of the plaintiff are as follows:
The plaintiff is the owner of the commercial building, viz., Sivananth Buildings, Plot No.C-46B, 2nd Avenue, Anna Nagar, Chennai -40, consisting of ground plus five floors in his individual capacity as well as Kartha of Joint family. The defendants herein occupied the 1st floor to 5th floor as tenant for their software business from 2005 by entering into lease agreement and the same was renewed from time to time and the defendants have also agreed to pay the electricity charges. While so, the defendants have completely stopped payment of rent and also failed to pay the electricity bills from June 2008, which resulted in disconnection.
2.1. According to the plaintiff, the defendants have also surrendered the lease of 1st, 4th and 5th floors and entered into a Memorandum of Understanding (in short MOU). As per the said MOU, a sum of Rs.16,87,000/- is due and payable towards arrears of rent, after deducting security deposit towards deferred payment for the above premises. The 1st defendant also failed to remit Tax Deducted at Sources (TDS) as agreed in the said MOU. On repeated demands, the cheque has been issued for a sum of Rs.16,87,000/-towards arrears of rent but the same has been returned with an endorsement insufficient funds, for which complaint has been filed under Section 138 of the Negotiable Instruments Act and the same is pending for trial in C.C.No.3828 of 2010.
22. According to the plaintiff, since the defendants have not come forward to pay the amount, RCOP No.756 of 2010 has been field for eviction. The 2nd and 3rd defendants are husband and wife and they have promoted the 1st defendant company only with malafide intention to obtain huge loan from commercial banks, as if they are running software business and to divert the loan funds to purchase property in their own names. Hence, the plaintiff filed the present suit for recovery of the amount.
3. Though notice was served on the defendants 1 to 3 long back, they have not chosen either to appear in person or through counsel. Therefore, they were set ex parte by this Court on 13.10.2015. The 4th defendant is a formal party.
4. On the side of the plaintiff, the plaintiff himself was examined as P.W.1 and Exs.P1 to P11 were marked. The details of the documents are hereunder:
Exhibits produced on the side of the plaintiff:
S.No Exhibits Date Description of documents
1. P-1 19.05.2007 The lease agreement entered into between the plaintiff and the defendant
2. P-2 19.05.2007 The lease agreement entered into between the plaintiff and the defendant
3. P-3 19.05.2007 The lease agreement entered into between the plaintiff and the defendant
4. P-4 15.07.2009 The memorandum of understanding entered into between the plaintiff and the defendant
5. P-5 20.11.2009 The certified copy of the cheque issued by the defendants in plaintiff's favour
6. P-6 30.03.2010 The certified copy of the return memo
7. P-7 13.04.2010 The legal notice issued by plaintiff counsel to the defendants
8. P-8 24.08.2010 The paper publication issued by plaintiff counsel to the defendants
9. P-9
-
The photocopy of the certificate of incorporation issued by ROC
10. P-10 28.03.2005 The photocopy of the balance sheet
11. P-11 31.03.2004 The certified copy of the sale deed Witnesses examined on the side of the plaintiff :
P.W.1. -V.Natanasabapathy
5. The learned counsel for the plaintiff submitted that the suit has been filed for recovery of arrears of rent of Rs.53,34,560/- from the defendants 1 to 3 jointly and severally. The learned counsel for the plaintiff further submitted that P.W.1, in his evidence, has clearly stated that though the defendants have occupied the premises as per the agreement, they failed to pay the monthly rents and electricity charges, which resulted in disconnection of the electricity by the TNEB. It is submitted that the defendants also failed to remit the Tax Deducted at Sources (TDS) from 2005 to the tune of Rs.9,42,296/-. Further, the cheque issued by the defendants for a sum of Rs.16,87,000/- towards arrears of rent is also dishonoured on account of insufficient funds. Therefore, the plaintiff is entitled to recover a sum of Rs.53,34,560/-. Since the defendants have not paid the rent even during the pendency of the Rent Control Proceedings and that the possession has been handed over to the plaintiff on 08.08.2002, he prayed for recovery of the aforementioned amount.
6. Learned counsel appearing for the 4th defendant submitted that he has no objection for passing decree against the defendants 1 to 3.
7. Heard the learned counsel for the plaintiff, the learned counsel for the 4th defendant and perused the records.
8. Ex.P1 is the agreement of lease dated 19.5.2007, entered into between the plaintiff and the defendants in respect of 1st Floor South wing, 1st Floor North wing, II Floor North Wing, III Floor both wings, wherein they agreed to pay the monthly rent of Rs.27,225/- Rs. 29,645/-, Rs.27,225/- and Rs.53,240/- respectively. Ex.P2 is the another agreement executed on 19.5.2007 for the monthly rent of Rs.7,300/- in respect of IV floor. Ex.P3 is the similar agreement entered into between the parties on the same day in respect of V Floor and Dining area place, wherein the defendants agreed to pay the monthly rent of Rs.29,000/-. Ex.P4 is the MOU dated 15.7.2009, wherein the defendants agreed to pay a sum of Rs.16,87,0000/- towards full and final settlement of all claims, after deducting TDS, within three months. The certified copy of the MOU clearly shows that the defendants have agreed to pay the aforementioned amount towards arrears of rent. Ex.P5 is the xerox copy of the cheque issued by the defendants in favour of the plaintiff as agreed in the MOU for a sum of Rs.16,87,0000/-. But the said cheque has been returned with an endorsement insufficient funds under Ex.P6. The plaintiff has also issued a legal notice, which is marked as Ex.P7 for recovery of arrears. It is also stated by the plaintiff that during the pendency of Rent Control Proceedings, one of the floor occupied by the defendant was vacated on 08.8.2012, for which also they have not paid the rental amount. Similarly, they also failed to pay the amount towards TDS. In these circumstances, it is the contention of the plaintiff that the defendants are liable to pay a sum of Rs.53,34,560/- to him.
9. On a careful perusal of the oral and documentary evidences adduced on the side of the plaintiff, it is clear that the plaintiff has established his claim. Further, the evidence of P.W.1 remain unchallenged. The lease agreement and MOU executed by the parties would clearly show that the defendants are liable to pay the arrears, as claimed by the plaintiff. That apart, the record shows that the plaintiff has filed the instant suit within three years from the date of execution of MOU, i.e. the same is well within the period of limitation.
10. In view of the same, this Court hold that the plaintiff has established his case. Accordingly, the suit is liable to be decreed against the defendants 1 to 3 for recovery of a sum of Rs.52,34,560/- with subsequent interest at the rate of 6%p.a. from the date of plaint, till the date of realisation with costs.
11. Insofar as the 4th defendant is concerned, as they are formal party and have been impleaded only to protect their right as a secured creditor, they are at liberty to work out their remedy in SARFAESI proceedings, which is pending before DRT.
12. In the result, the suit is decreed for recovery of a sum of Rs. 52,34,560/- against the defendants 1 to 3 with subsequent interest at the rate of 6% p.a. from the date of plaint till the date of realisation with costs.
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Index : Yes/No
Internet : Yes/No
N.SATHISH KUMAR, J
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Pre-delivery judgment in
C.S.No.373 of 2011
..02..2017
http://www.judis.nic.in