IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.4317/2017 (GM-CPC) BETWEEN:
M/S HERCULES SPORTS INTERNATIONAL NO.4, HSR LAYOUT, I SECTOR BENGALURU-560 095 REP. BY ITS PARTNERS 1(a) SRI. H.V. GAJARAJ AGED ABOUT 64 YEARS 1(b) SMT. VASANTHA GAJARAJ AGED ABOUT 54 YEARS BOTH ARE RESIDING AT NO.34, MADANDEEP, BTM I PHASE 18TH MAIN, BENGALURU-560 068.
...PETITIONERS (BY SRI. DWARAKA NATH H.S, ADVOCATE) AND:
1. SMT. T. AMUDHA AGED ABOUT 47 YEARS D/O SRI. A. T. VELU 2. SMT. T. LAKSHMI AGED ABOUT 36 YEARS D/O SRI. A. T. VELU RESPONDENTS 1 AND 2 ARE R/AT NO.133, KHB COLONY KORAMANGALA BENGALURU-560 095.
...RESPONDENTS (BY SRI. A. RAVISHANKAR, ADVOCATE FOR C/R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH ORDERS PASSED ON I.A.NO.7 FILED UNDER ORDER XXVI RULE 9 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE DATED 19.01.2017 IN O.S.NO.7642/2014 BY THE CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-13) VIDE ANNEXURE-A AND FOR ALLOWING THE SAID APPLICATION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Respondents herein have filed the suit O.S.No.7642/2014 against petitioners, which is pending on the file of V. Addl. City Civil Judge, Bangalore, for decree of ejectment from suit schedule properties and for recovery of arrears of rent contending interalia that suit property was leased to the writ petitioners / defendants under lease deed dated 01.02.2011 whereunder defendants had agreed to pay rent of `1,90,000/- per month and lease was for a period of 5 years commencing from 01.04.2011 with an escalation of payment of monthly rentals at 15% every three (3) years and said lease came to be determined by issuance of legal notice dated 25.06.2014.
2. It is further contended that during the month of November’ 2013 defendants had approached the plaintiffs indicating that they intended to surrender first floor premise and continue the ground floor and basement and expressed their inability to pay monthly rental, for which plaintiffs did not agree and on account of defendants being irregular in the matter of payment of rent and defendants having violated the terms of the lease deed, tenancy was terminated.
3. On service of suit summons defendants appeared, filed their written statement, denied the averments made in the plaint and contended that defendants are using only ground floor portion for their business and inspite of not using major portion of suit schedule premises, they had been paying monthly rent of ` 1,90,000/- to plaintiffs by way of cheques upto October’ 2013 and on the assurances and promises made by the plaintiffs that they will give deduction to the defendants for not having used first floor and basement portions and it is further contended that plaintiffs had agreed to receive rent of `96,000/- per month from the beginning of lease i.e., from 01.04.2011. On these amongst other grounds they sought for dismissal of the suit. On framing of issues parties have gone for trial.
4. Plaintiffs filed an application under Section 151 CPC seeking for a direction to the defendants to deposit arrears of rent. Said application came to be adjudicated and it was ordered that defendants should deposit a sum of ` 20,49,444/- being the arrears of rent from November’ 2013 to March’ 2014 @ ` 1,96,000/- per month and from 01.04.2014 to July 2014 at same rate of rent plus service tax vide order dated 16.10.2015. Being aggrieved by the said order defendants approached this Court in W.P.No.51784/2015. By order dated 21.06.2016 this Court dismissed the writ petition and affirmed the order passed by the trial Court.
5. It would be apt and appropriate to note at this juncture itself that on account of delay in filing the written statement and same having been accepted by the trial Court by its order dated 11.06.2015, plaintiffs had approached this Court in W.P.Nos.25582-83/2015 and this Court while disposing the said writ petitions on 29.03.2015 made an observation that trial Court should dispose of the suit expeditiously at any rate within nine (9) months from the next date of hearing.
6. In this factual background, defendants filed an interlocutory application under Order XXVI Rule 9 r/w Section 151 CPC seeking for appointment of Commissioner to compare the signature found on letter/purported agreement/contract dated 09.04.2011 marked as Ex.D-1 for being compared with the admitted signatures of plaintiffs found on vakalathnama/plaint/lease agreement marked as Exs.P-2, P-1 – GPA. This application came to be opposed by the plaintiffs by filing detailed statement of objections and trial Court after considering rival contentions by impugned order dated 16.06.2016 – Annexure-G dismissed the said application by assigning the reason that disputed document namely letter / agreement / contract dated 09.04.2011 has been marked subject to objections; it bears the purported signature of first plaintiff only and as such it is not an agreement entered into between parties; and even otherwise, it is agreed under the said document that parties had agreed that a supplementary agreement had to follow and there being no such supplementary agreement entered into between parties, it would not amount to a concluded contract. On these grounds, trial Court rejected said application.
7. It is also to be noticed that application for appointment of Commissioner had been rejected by the trial Court earlier by order dated 16.06.2016 – Annexure – G and being aggrieved by the same, defendants had approached this Court in W.P.No.36824/2016 contending interalia that it was not a speaking order. As such this Court had directed the trial Court to reconsider I.A.No.7 in accordance with law and dispose of the same. Learned trial Judge by impugned order, yet again dismissed I.A.No.7 for the reasons already noted hereinabove. Hence, this writ petition has been preferred by defendants.
8. I have heard the arguments of Sriyuths H.S.Dwarakanath, learned counsel appearing for the petitioners and Sri.A.Ravishankar, learned counsel appearing for respondents. Perused the records.
9. It is the contention of Sri.Dwarakanath, learned counsel appearing for petitioners that trial Court committed a serious error in rejecting the said application and very defence raised by the defendants in written statement was to the effect that immediately after the execution of lease deed dated 01.04.2011 a contract had been entered into between plaintiffs and defendants on 09.04.2011, whereunder it was agreed between parties that defendants would utilize only the ground floor portion and as such, rent agreed under lease deed @ ` 1,90,000/- per month came to be reduced to ` 96,000/- per month under the agreement dated 09.04.2011, which has been denied and disputed by the plaintiffs and as such it necessitated the defendants to seek for appointment of a Court Commissioner for comparing the signatures found in agreement dated 09.04.2011 along with admitted signatures of the plaintiffs. He would also contend that reasons assigned by the trial Court that Ex.D-1 itself is a contemplated supplementary agreement is misinterpretation and he draws the attention of the Court to the very document, which came to be marked as Ex.D-1 to contend that finding of trial Court in this regard is erroneous. He would also submit that observation made by the trial Court that Ex.D-1 was not acted upon and is erroneous, since the very contention of defendants throughout has been that Ex.D-1 was not given effect to and as such, plaintiffs are making unjust claim in the matter of rent. He would further submit that finding of the trial Court that merely because second plaintiff had not affixed her signature to the disputed document - Ex.D-1, would not be a ground to hold that it is not a concluded contract, inasmuch as, contract entered into by a co-owner would be binding on another co-owner and this aspect requires to be resolved by adjudication after obtaining expert opinion. On these grounds, by relying upon the following judgments he seeks for setting aside the impugned order and prays for allowing the writ petition:
(i) AIR 1996 SC 1140: O.BHARATAN vs. K.SUDHAKARAN AND ANOTHER (ii) AIR 1989 SC 14: THE STATE (DELHI ADMINISTRATION) vs. PALI RAM 10. Per contra, Sri.A.Ravishankar, learned counsel appearing for respondents-plaintiffs would support the impugned order and contends that Ex.D-1 is not a complete document and at no point of time commencing from replying to the notice of termination issued by plaintiffs till date, defendants have pleaded about existence of such a deed or document and they had continued to pay rent @ ` 1,96,000/- per month and in fact defendants had also deducted the Income Tax Deductable at Source (TDS) on rent of ` 1,96,000/-
as per Exs.P-12 and 13 and it is too late in the day for defendants to contend that there was no such agreement to pay rent @ ` 1,96,000/- or it was reduced to ` 96,000/-. He would also draw the attention of the Court to the earlier pleading relating to same property between same parties to buttress his arguments that plea had been raised with regard to existence of disputed document. Hence, he prays for dismissal of the writ petition by relying upon the following judgments:
(i) (2003) 4 SCC 86:
M.V.SHANKAR BHAT & ANR. vs. CLAUDE PINTO SINCE (DECEASED) BY LRS & ORS.
(ii) 2011 SCC ONLINE KAR. 2090:
H.B.VENKATESH vs. H.B.SRILAKSHMI (iii) (2012) 11 SCC 405:
PAYAL VISION LTD. vs. RADHIKA CHOUDHARY (iv) (2015) 13 SCC 233:
RISHI KIRAN LOGISTICS PVT. LTD. BOARD OF TRUSTEES OF KANDLA PORT TURST AND OTHERS 11. In reply Sri.Dwarakanath, learned counsel appearing for petitioners has contended that in pleadings no contention is required to be taken with regard to probable evidence that would be tendered by a party and as such contents of Ex.D-1 was not required to be pleaded in the written statement filed by defendants and said fact is required to be proved in evidence. He would also submit, a plea had been raised in the written statement with regard to variation in the terms and conditions of lease as agreed to between parties under Ex.D-1, Hence, he submits that comparison of admitted signatures of plaintiffs with the signatures found on deed dated 09.04.2011 - Ex.D-1 would reveal the truth and as such, he prays for dismissal of the writ petition.
12. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that in respect of suit property plaintiffs and defendants entered into a lease deed on 01.02.2011 for being effective from 01.04.2011 vide Annexure-R1. Said deed would also disclose that defendants have agreed to pay rent of ` 1,90,000/- per month with escalation @ 15% after every three (3) years and a security deposit of ` 19,00,000/- has been paid under the said agreement by defendants to plaintiffs. The records would also disclose that defendants were required to deduct tax at source on rental payments and by virtue of such clause found in Ex.P-2, defendants have deducted tax at source from November’ 2013, upto July’ 2014 on `1,90,000/- and TDS certificates came to be marked as Exs.P-12 and P-13. There is no dispute on these facts or in other words, both parties are at ad-idem on these issues.
13. When this was the factual position, by issuance of notice dated 25.06.2014 plaintiffs terminated the tenancy and sought for ejectment of defendants from suit property. It was alleged that defendants are in arrears of rent. Said notice was duly replied by defendants under reply notice dated 26.07.2014 - Ex. P-11. Apprehending that plaintiffs are likely to dispossess defendants from suit property without due process of law, a suit for permanent injunction came to be filed by defendants in O.S.No.6571/2014 on the file of City Civil Judge, Bangalore, and an order of status-quo came to be passed in said suit. Perusal of reply notice - Ex.P-11 and also averments made in plaint i.e., O.S.No.6571/2014, would not indicate or disclose about the purported agreement dated 09.04.2011 having been entered into between parties, which has been produced in the suit in question and marked as Ex.D-1. Though Sri.H.S.Dwarakanath, learned counsel appearing for the writ petitioners/defendants has made a valiant attempt to contend that evidence is not required to be pleaded in the pleadings, said contention does not hold water inasmuch as any amount of evidence sought to be tendered without a plea is of no consequence. In the instant case, there is not even a whisper either in the reply notice - Ex.P-11 or in the averments made in suit O.S.No.6571/2014 about any such agreement having been entered into between plaintiffs and defendants on 09.04.2011. On the other hand, defendants who had filed the suit O.S.No.6571/2014 have unequivocally admitted in paragraph 5 of the said plaint the rate of rent in respect of suit schedule property is ` 1,90,000/- per month. It is no doubt true that defendants have also pleaded that they are liable to pay monthly rent @ `96,000/- per month and have also admitted that defendants have not paid rents from November’ 2013. However, the moot question that remains unanswered prima facie is; whether there was any agreement entered into between plaintiffs and defendant on 09.04.2011 – Ex.D-1 agreeing for reduction in the rate of rent @ ` 96,000/- per month. If it were to be so, no plausible explanation is forthcoming as to why defendants continued to pay @ ` 1,90,000/- per month to the plaintiffs for about 2 years, that too after deducting the tax and depositing TDS component with the income tax authorities and as such, this Court is of the view that said moot question has prima facie remained unanswered. Defendants also admit in their written statement filed in the present suit i.e., O.S.No.7641/2014 that they had paid monthly rent @ ` 1,90,000/- per month to plaintiffs by way of cheques upto 2013. If really there was an agreement between parties as per agreement dated 09.04.2011, as pleaded and contended by defendants nothing prevented them to pay said amount or on failure of plaintiffs to receive the amount of ` 96,000/- per month to deposit the same before the appropriate forum. This exercise was not undertaken by the defendants for reasons best known, but on the other hand, their continued conduct would clearly disclose that they were paying rent @ `1,90,000/- that too after deducting TDS and only when plaintiffs started demanding arrears of rent from November’ 2013 they have come up with a new plea of there being a contract between parties under agreement dated 09.04.2011 - Ex.D-1, which plea had not been raised in earlier proceedings also.
14. Though learned counsel appearing for defendants having raised a plea of possession of portion of suit property having been delivered to plaintiffs, same has been denied and this Court would not venture to examine said issue, since matter is at large before trial Court and it would be at liberty to examine the said aspect on evaluating the evidence that would be tendered by the parties. In fact, defendants’ attempt to stave off its liability to pay rent @ ` 1,90,000/- per month was not successful, inasmuch as, application filed by the plaintiffs to direct the defendants to pay / deposit the arrears of rent @ `1,90,000/- per month, was accepted by the trial Court by allowing the application filed by plaintiffs and it was also affirmed by this Court in W.P.No.51784/2015 disposed of on 25.01.2016 vide Annexure-R7.
15. In this factual background, when the plea of defendants to refer the disputed documents Ex.D-1 for being compared with the original is examined, it would clearly disclose that even a bare reading of contents of Ex.D-1 does not disclose that it is a concluded contract and even accepting the contention of the defendant for a moment, contents of Ex.D-1 would clearly disclose it is only a promise for completing the contract or entering into further supplementary contract and it is not a contract by itself. In fact, Apex Court under similar circumstances in the case of M.V.SHANKAR BHAT & ANR. vs. CLAUDE PINTO SINCE (DECEASED) BY LRS & ORS. reported in (2003) 4 SCC 86 has held that an agreement subject to ratification by others, who are not parties to it, is not a concluded contract. It came to be held:
“31. When an agreement is entered into subject to ratification by others, a concluded contract is not arrived at. Whenever ratification by some other persons, who are not parties to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract.”
16. In the background of aforesaid position of law of the Apex Court, when the document in question Ex-D-1 sought for being referred to expert to compare the signatures found therein, it would disclose that it is dated 09.04.2011 and it would further disclose that a meeting had been held in the presence of both the plaintiffs and father of plaintiffs along with defendant No.1(a). It is said to have been signed by first plaintiff and defendant No.1(a). If really meeting came to be held in the presence of both plaintiffs, in which meeting father of plaintiffs was also present, nothing prevented the defendants to obtain their signatures also, inasmuch as, they were very much present at the said meeting even according to the defendant. In the absence of their signature and defendant having specifically denied the execution of said document (Ex.D-1) and also said document by itself not creating any right in defendants to vary the terms of lease deed, mere production of said document would be of no consequence, even if it is accepted to have been executed by one of the plaintiffs. Any condition agreed to between the parties under a contract if it is sought to be varied or changed, it cannot be done to the determinant to the signatories to the earlier contract or unilaterally by one person to bind others also. In the event of any contract entered into by one of the parties to first contract by altering the terms, it is trite law that it would not be binding on others.
17. The judgments relied upon by the learned counsel appearing for the petitioners when perused would disclose that there cannot be any dispute with regard to the proposition of law laid down in the said judgments. Appointment of an expert to compare the disputed signature with the admitted signature, is always dependent on the facts and circumstances of each case and there cannot be any straight jacket formula and it always takes colour depending upon the terrain in which the lis would traverse. In the instant case, as already noticed hereinabove suit in question being for ejectment, defendants sought to raise a plea with regard to there being variation in the term relating to quantum of rent, which was denied by plaintiffs and plea of the defendant has not been accepted by the trial Court as well as by this Court even in earlier round of litigation and as such defendants cannot be now allowed to contend that disputed document requires to be referred to forensic expert or an expert - Court Commissioner is to be appointed to compare the disputed signature of plaintiffs found in the said document with their admitted signatures.
18. As already noticed herein supra, a direction came to be issued by this Court in W.P.Nos.25582- 83/2015 to the effect that suit in question should be disposed of within nine (9) months and it has remained on papers without there being any fruitful result, which obviously is on account of writ petitioners/defendants having filed the application in question and thereby stalled the proceedings before trial Court. Hence, further direction requires to be issued to the trial Court to dispose of the suit in an expeditious manner and within a timeframe particularly in the background of present stage of suit is for final arguments being addressed on behalf of defendants.
19. For the reasons aforesaid, this Court is of the considered view that there is no merit in this writ petition. Accordingly, same stands rejected and trial Court is hereby directed to dispose of the suit within two (2) weeks from the next date of hearing. It is made clear that any opinion expressed during the course of this order is for the limited purpose of disposing of the interlocutory application for appointment of a Court Commissioner and trial Court without being influenced by the same, shall dispose of the suit on merits and in accordance with law.
In view of writ petition having been rejected, I.A.No.1/2017 for vacating the interim stay does not survive for consideration and same stands rejected.
SD/- JUDGE DR