IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL No.1957 of 2017(EJE) BETWEEN:
M/S. BATA INDIA LIMITED, HAVING ITS REG. OFFICE AT 6A, SURENDRANATH BANERJEE ROAD, KOLKATA-700 013.
AT PRESENT 27B, 1ST FLOOR, CAMAC STREET, KOLKATA, WEST BENGAL.
AND HAVING ITS CORPORATE OFFICE AT, BATA INDIA LTD., BATA HOUSE, 418/2, M.G. ROAD, SECTOR 17, GURUGRAM, HARYANA-122 001.
REPRESENTED BY ITS VICE PRESIDENT, LEGAL SRI MANOJ GOSWANI.
AND ALSO HAVING ITS SHOWROOM, AT BATA INDIA LTD., SHOW ROOM, MARATHHALLI MAIN ROAD, MARATHHALLI, BENGALAURU-560 037.
... APPELLANT (BY SRI Y. RAJENDRA PRASAD SHETTY, ADVOCATE) AND:
1. SRI HAJI K. MAMMOO, S/O LATE HASSA, AGED ABOUT 79 YEARS, RESIDING AT No.21/3, SPENCER ROAD, FRAZER TOWN, BENGALURU-560 005.
2. SRI K.M. SALEEM, S/O LATE HAJEE K. MAMMOO, AGED ABOUT 47 YEARS, RESIDING AT No.21/3, SPENCER ROAD, FRAZER TOWN, BENGALURU-560 005.
3. SMT. T.M. KHADEEJA, W/O HAJI K. MAMMOO, AGED ABOUT 68 YEARS, RESIDING AT No.21/3, SPENCER ROAD, FRAZER TOWN, BENGALURU-560 005.
4. SMT. K.M. SHAHINA, D/O HAJI K. MAMMOO, & W/O AVICINNA, AGED ABOUT 45 YEARS, RESIDING AT No.21/3, SPENCER ROAD, FRAZER TOWN, BENGALURU-560 005.
REPRESENTED BY THEIR POWER OF ATTORNEY SRI. K.M. SAEED.
5. SRI K.M. SAEED, S/O HAJI K. MAMMOO, AGED ABOUT 40 YEARS, RESIDING AT No.21/3, SPENCER ROAD, FRAZER TOWN, BENGALURU-560 005.
... RESPONDENTS (BY SRI GANAPATI HEGDE, ADVOCATE FOR R-1) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.09.2017 PASSED IN OS.No.5046/2014 ON THE FILE OF THE XLIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR EJECTMENT.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.12.2018 AND COMING ON FOR PRONOUNCEMENT, THIS DAY K. NATARAJAN J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T This Regular First Appeal is preferred by the appellant/defendant being aggrieved by the judgment and decree dated 16.09.2017, passed by the XLIV Additional City Civil Judge, Bengaluru City, CCH-45 in O.S.No.5046/2014.
2. The appellant is the defendant-Company and the respondents are the plaintiffs before the Trial Court. The ranks of the parties before the Trial Court are retained for the sake of convenience.
3. The case of the plaintiffs before the Trial Court is that they are the co-owners of the suit property mentioned in the plaint and they let out the said property to the defendant for rent as per the lease deed executed between the parties. The defendant is said to have paid the Security Deposit of Rs.9,50,000/- and rent till 2014. The plaintiffs issued notice to the defendant terminating the tenancy and to quit and vacate the premises and to deliver vacant possession of the suit property. The defendant having not answered the notice or vacated the premises, the plaintiffs filed the suit in O.S.No.5046/2014. The defendant appeared before the Court and filed written statement and the Trial Court framed as many as seven issues. In support of the case, the plaintiffs got examined PW.1 and got marked nine documents as per Exs.P.1 to P.9. On behalf of the defendant, the representative of the defendant-Company was examined as DW.1 and got marked one document as per Ex.D.1. After hearing both sides, the Trial Court decreed the suit and directed the defendant to quit and vacate the premises and to deliver physical vacant possession in favour of the plaintiffs and also to pay a sum of Rs.1,04,506.27 with interest at the rate of 18% p.a. on the amount of Rs.1,00,006 from the date of suit till payment, vide judgment dated 16.09.2017. Being aggrieved by the same, the defendant has preferred the present appeal on various grounds.
4. Learned counsel for the appellant/defendant mainly contended that the very notice issued by the respondents/plaintiffs is not a valid notice. In fact, there is no relationship between the Saleem Associates and the appellant herein. There is no agreement between them. Therefore, the notice issued by the plaintiffs is not valid for termination of the tenancy and on this ground alone, the appeal is liable to be allowed. It is further contended by learned counsel for the appellant/defendant that the appellant was continuously paying the rents even after issuance of the alleged notice and the rent was received by the plaintiffs. Therefore, there was no termination of tenancy. On the above grounds, the appellant prayed for allowing the appeal.
5. On the other hand, learned counsel for the respondents/plaintiffs contended that the defendant has not at all disputed the issuance of notice by Saleem Associates. In the written statement filed before the Trial Court, service of notice was not seriously disputed by the defendant, on the other hand, the defendant admitted in the evidence confirming payment of rents to the Saleem Associates. Therefore, it is contended that when there was no such contention or plea raised at the earliest point of time in the written statement before the Trial Court, now the defendant cannot agitate the said ground for the first time in the appeal. Learned counsel for the respondents supported the judgment and the decree passed by the Trial Court and prayed for dismissal of the appeal.
6. Heard both counsels.
7. It is an admitted fact that the appellant/defendant was the tenant and plaintiffs were co-owners of the property and they entered into an agreement of lease. It is also seen from the records that the defendant was paying rents till 2014 and thereafter, the respondents/ plaintiffs through their Advocates – M/s. Dua Associates, got issued a legal notice as per Ex.P.7, on 06.06.2014. The same was served on the defendant as per the endorsement issued by the Superintendent of Post Office marked as Ex.P.8 and admittedly, there was no reply given by the defendant to the said notice. The evidence on record and the written statement filed by the defendant goes to show that there was no specific denial in respect of the relationship between the Saleem Associates and the defendant in respect of the lease agreement. Though the defendant has taken the contention as per the terms and conditions of the lease agreement, the defendant was required to pay the rent once in three months and not every month. The defendant also denied the arrears of rent, but there was no serious denial of the relationship between the defendant and the plaintiffs in the written statement.
8. Perusal of the evidence of the General Power of Attorney Holder of the defendant, who was examined as DW.1, reveals that the defendant admitted payment of rents continuously to the Saleem Associates. In the deposition, DW.1-Ashish has clearly admitted that the defendant and the Saleem Associates had entered into a lease agreement and the original agreement was taken by the Saleem Associates. The admission of the defendant clearly goes to show that there is a lease agreement between the defendant and the plaintiffs. Therefore, the contention taken by learned counsel for the defendant that there is no relationship between the defendant and the Saleem Associates, cannot be acceptable. Another contention taken by learned counsel for the appellant is that the advance amount retained by the plaintiffs to an extent of Rs.9,50,000/- was not adjusted. On the other hand, learned counsel for the respondents/plaintiffs contended that the said amount stands adjusted towards the arrears of rents over the period and the same was mentioned in the legal notice-Ex.P.7. On perusal of the evidence on record, though the defendant contended that the said advance amount was retained by the plaintiffs and thereby there were no arrears of rent payable by the defendant, in order to prove the said contention, the defendant has not produced or marked any document before the Trial Court and also to show that the defendant used to pay the rent regularly even after the termination of tenancy and after receipt of notice, as such there was no default of any rent till the filing of the suit. Therefore, the contention of the defendant that there were no arrears of rent and the advance amount of Rs.9,50,000/- was pending with the plaintiffs, cannot be acceptable. The Trial Court has also taken a similar view that documents were not produced by the defendant to show that the defendant was not due in arrears of rent payable to the respondents/plaintiffs and has also held that as per the legal notice, the said advance amount of Rs.9,50,000/- has been adjusted by the plaintiffs over the period, which was not denied by the defendant by giving any reply to the legal notice. Therefore, the said contention raised by learned counsel for the appellant/defendant also holds no water.
9. Learned counsel for the respondents also relied upon the decision of the Hon’ble Supreme Court in the case of Parwati Bai vs. Radhika reported in AIR 2003 SC 3995, to the following effect;
“ 6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of S.106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under S.106, T.P. Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Exh.P-4.”
10. In view of the decision of the Supreme Court, once the defendant failed to raise such contention in the written statement filed before the Trial Court, he cannot agitate the same for the first time at the appellate stage.
Therefore, the contention of learned counsel for the appellant that there is no jural relationship between the plaintiffs and the defendant and the notice was not served on the defendant is not acceptable.
11. On perusal of the documents of the plaintiffs and the judgment and decree passed by the Trial Court, we do not find any illegality committed by the Trial Court while accepting the evidence of the plaintiffs. The documents, the evidence and even the admission of the defendant clearly goes to show that there was an agreement between the plaintiffs and the defendant for lease and the plaintiffs issued notice under Ex.P.7 terminating the tenancy and though the defendant received the said notice, neither the defendant replied nor vacated the premises and not produced any document to show that the defendant was regularly paying rent to the plaintiffs. Therefore, we do not find any illegality to interfere with the judgment and decree passed by the Trial Court. The appeal is devoid of merit. Hence, the appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE mv