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THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No.1283 OF 2014 Dated:05-06-2014 David Prem Inba Rajan ... PETITIONER AND Dr. Ch. Ashok HUF .. RESPONDENT ORDER:
THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No.1283 OF 2014 This revision petition is filed aggrieved by the order dated 07-11-2013 passed in I.A No. 1669 of 2012 in O.S No. 30 of 2012 wherein and whereby the learned III Senior Civil Judge, City Civil Court, Hyerdabad allowed the application filed by the respondent under Order XV-A CPC seeking direction against the petitioner to pay or deposit rents into the Court.
The respondent is the plaintiff and the petitioner is the defendant in the aforesaid suit. The respondent filed the suit seeking eviction of the petitioner and for recovery of rents, property tax electrical and water charges and the suit was coming up for filing written statement. At that stage, he filed I.A No. 1669 of 2012 seeking a direction to the petitioner to pay or deposit rents into the Court stating that he is the owner of premises known as ‘Sita Towers’ bearing No.1- 11-248 situate at Begumpeta and that a portion of the first floor was leased out to the petitioner for a monthly rent of Rs.40,000/- vide registered lease agreement dated 16-12-2010. The respondent further stated that fraudulently the petitioner incorporated clause 2 into the lease agreement as per which the premises is rent free from January 2011 to June 2011 on the ground that he has to make up interiors and renovation. Clause 10 of the lease deed clearly indicates that the lease commences from 01-01-2011 for a period of 24 months and the petitioner has even issued 24 cheques. In the suit O.S No. 277 of 2011 filed by the petitioner for perpetual injunction, it was stated by him that the lease commenced on 01-01-2011 and that he commenced the business on 04-03-2011. The respondent further alleged that the petitioner agreed to pay Rs.3,00,000/- as interest free security deposit but has paid only Rs.2,50,000/- and had remitted Rs.85,000/- in January 2011 and acknowledging the same he issued receipt towards the rent for the months of December 2010 and January 2011 and Rs.5,000/- towards erection of tea stall in the ground floor. Except making payment of Rs.85,000/- referred to above, the petitioner did not make any payment. When the petitioner did not pay the rent despite repeated requests the respondent is stated to have deposited the cheque for Rs.40,000/- issued towards payment for one month rent, but the same was dishonoured for insufficiency of funds. The respondent therefore issued legal notice dated 26-08-2011 and also issued notices to pay rents from 11-02-2011 to 30-09-2011 besides balance security amount of Rs.50,000/-. The notice was returned as refused.
The respondent also filed O.S No. 578 of 2011 for recovery of arrears of rent. Thereafter, the petitioner issued reply notice stating that he need not pay rents and that 24 cheques were issued towards security for payment of rents due for adjustment for the subsequent months, that the respondent failed to issue receipts and that he paid a further amount of Rs.85,000/- towards rent in advance for the months of July and August 2011 and Rs.5,000/- towards the property tax deduction certificate against the alleged rents paid by him and also requested to adjust rents allegedly paid for the period from January 2011 to June 2011 towards rent for September 2011 to March 2012. The respondent also issued notice dated 20-09-2011 directing the petitioner to pay the rents due by him besides balance security deposit of Rs.50,000/- and demanded to deliver vacant peaceful possession of the property within 60 days. The petitioner is stated to have filed a complaint on 11-01-2012 before the Begumpet Police Station in Crime No. 16 of 2012 for the offences under Sections 506, 307 and 420 IPC and the police after enquiry have filed final report on 12-07-2012. Since the petitioner failed to pay comply with the demand, the suit is filed and to recover the rents due to be paid by him which accumulated to Rs.8,40,000/-, the present I.A is filed.
The petitioner herein filed counter affidavit denying the allegations made in the petition contending that as per the terms of the lease agreement he has to pay rents from July 2011 and that out of good faith he handed over cheques duly signed by him and that the respondent after receiving the rent in advance for the months of July 2011 and August 2011 intentionally deposited the cheque by filling the blanks as if he had issued cheques in his name without intimation to him. He further contended that as per clause 3 of the lease agreement, if rent for any month is not received by the respondent, then cheque has to be deposited for the defaulted month. According to the petitioner, since injunction order was passed in his favour against the respondent in the suit filed by him, the respondent bore grudge against him and deposited cheque given by him as security for unlawful gain. The petitioner further stated that he did not receive notices 08-09-2011 and 10-09-2011 and that he gave suitable reply for notice dated 20-09-2011. Taking advantage of clause 8 of the lease agreement when the respondent tried to dispossess him, he filed O.S No. 277 of 2011 in which injunction was granted on 05-08-2011. He never committed default in payment of rents as alleged by the respondent and that upon receiving notice from the respondent he instructed the Bank to stop future payments and that he was also never due of any electricity charges and water charges as alleged by the respondent, that he paid the water and electricity bills for the entire building on the assurance of the respondent that he would compensate the same in future. According to the petitioner, the respondent is holding an amount of Rs.2,50,000/- as interest free security deposit and Rs.10,00,000/- towards refundable deposit and another sum of Rs.2,80,000/- towards advance rent for the rent free period i.e., December 2010 to June 2011. The petitioner stated the respondent to adjust the rent for the rent free period i.e., from December 2010 to June 2011 towards the rent from September 2011 to April 2012 and also from the interest free deposit of Rs.12,50,000/-. According to him, after deducting an amount of Rs.3,20,000/- towards the rent from May 2012 to December 2012 and Rs.5,000/- towards the property tax for the year 2012 from the interest free deposit, still an amount of Rs.9,25,000/- is lying with the respondent and, therefore, he is not due to pay any amount towards the rent and thus the petition is liable for dismissal.
In support of his case, the respondent got marked Exs.P-1 to P- 3 and on behalf of the petitioner, Exs.R-1 to R-9 were got marked. The trial Court after considering the pleadings of the parties and on an evaluation of the material on record allowed the petition directing the petitioner to deposit Rs.7,90,000/- towards arrears of rent for the period from July 2011 to October 2013 i.e., for 28 months which is after deducting advance rent of Rs.80,000/- and interest free deposit of Rs.2,50,000/-, to the credit of the suit and also directed to deposit rent at the rate of Rs.40,000/- per month from November 2013 onwards on or before 10 of every month or else the defence of the petitioner in the suit would be struck off.
Learned counsel for the petitioner contends that the petitioner apart from paying Rs.10,00,000/- also gave Rs.2,50,000/- to the respondent towards interest free deposit and in fact he also paid rents December 2010 to June 2011 though there is a specific clause that the premises would be rent free up to June 2011.
According to the respondent, the petitioner only paid rent for the months of December 2010 and January 2011 and committed default in payment of rent from February 2011 and admittedly an amount of Rs.2,50,000 was paid by the petitioner towards interest free security deposit.
It is the contention of the petitioner that as per clause 2 of the lease agreement, the premises is rent free up to June 2011 and the respondent is holding an amount of Rs.2,50,000/- towards interest free security deposit; Rs.10,00,000/- towards refundable deposit for cellar and another sum of Rs.2,80,000/- towards advance rent for the rent free period i.e., December 2010 to June 2011. The petitioner in support of his claim that he gave Rs.10,00,000/- towards refundable deposit to the respondent except filing Ex.R-2 receipt which does not bear any date and signature and which was not referred to in the lease agreement, did not adduce any evidence in support of Ex.R-2. Therefore, the same was rightly not taken into consideration by the trial Court.
Even if the contention of the petitioner that as per clause 2 the premises is rent free up to June 2011 is accepted for the sake of the present application, the petitioner is due to pay rent from July 2011. Whether the petitioner has in fact paid Rs.10,00,000/- towards refundable deposit, as rightly observed by the trial Court would be gone into during the course of trial of the main suit. Thus, as on the date of the impugned order, the petitioner was due to pay an amount of Rs.11,20,0000/- towards rent for 28 months i.e., from July 2011 to October 2013. If the amount of Rs.2,50,000/- paid by the petitioner towards interest free security deposit and Rs.80,000/- alleged to have been paid by him towards rent for two months is deducted, as held by the trial Court the petitioner is still liable to pay an amount of Rs.7,90,000/- towards the arrears of rent.
The contention of the petitioner that the premises is rent free up to June 2011 has to be considered by the trial Court during the course of the trial of the suit.
For the aforesaid reasons, I see no reason to interfere with the well considered order passed by the trial Court.
The civil revision petition is accordingly dismissed. Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J 5th June, 2014 ks