IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.813 OF 2015 BETWEEN:
M/s. HINDUSTHAN FINANCE CORPORATION A registered partnership firm having its office at No.19/B Hindusthan Complex, IV Floor B.V.K. Iyengar Road, Bengaluru – 560 009 Represented by its Managing Partner Shri S Gopalakrishnaiah Chetty Aged about 77 years, S/o. late Shri S. Lakshminarayana Shetty (By Sri Ashwath C.M., Advocate) AND:
1. THE BHARATH TELECOM FKCCI Building, 2nd Floor K.G. Road, Bengaluru – 560 009 Represented by the Deputy General Manager (Rural) 2. BHARATH SANCHAR NIGAM LTD.
(previously known as Indian … Appellant Telegraphs and Telecommunications Ltd.) Area Manager (Central) City Telephone Exchange, Sampangi Ramanagar Bengaluru …Respondents (By Sri. Thribhuvan K. and Sri. K. Rama Bhat for Rama Bhat & Associates) **** This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:09-03-2015 passed in O.S.No.422/2010 on the file of the XL Additional City Civil & Sessions Judge (CCH-41) at Bengaluru, partly decreeing the suit for recovery of money.
This Regular First Appeal coming on for Hearing, this day, the Court delivered the following:
J U D G M E N T This is a Plaintiff’s appeal. The present appellant as a plaintiff had instituted a suit against the present respondents arraigning them as defendants No.1 and 2 in the Court of the XL Additional City Civil and Sessions Judge (CCH-41) at Bengaluru (hereinafter for brevity referred to as the “the Trial Court”) in O.S.No.422/2010 seeking recovery of a sum of `4,76,077/- together with interest there upon at the rate of `12% per annum from the defendants.
2. The summary of the case of the plaintiff in the Trial Court was that, the second defendant was in occupation of the second, third and fourth floor of the Commercial Complex situated at 19/B, Hindusthan Complex, B.V.K. Iyengar Road, Bengaluru-560009, which was under the ownership of the plaintiff- firm.
The second defendant was in occupation of an area totally measuring 9,445 sq.ft. as a tenant under the plaintiff-firm ever since 1980. There were periodical fresh agreements entered into between the parties, last of them being on 18-04-2001. The second defendant was paying the rents regularly to the plaintiff-firm as per the terms of the agreement only upto 15-08-2005 with the last lease commencing on 10-11-1999. The lease period having come to an end on 10-11-2004, as agreed between the parties under the agreement dated 18-04-2001, the second defendant surrendered and handed over the vacant possession of the entire third and fourth floors of the building of the plaintiff-firm on 17-08-2005 and by retaining the northern half portion of the second floor measuring an area of 2,184 sq.ft. with it, the second defendant continued to occupy the said northern half portion of the second floor from 16-08-2005 and vacated and handed over the possession of the same only on 15-09-2006. The second defendant was allowed and permitted to continue to occupy the northern half portion of the second floor, subject to payment of rent as agreed upon between the parties and not otherwise.
It was further the case of the plaintiff in the Trial Court that, as per the agreed terms between the parties, the second defendant had to pay the rental at the rate of `12/- per sq.feet towards an area of 2,184 sq.feet which was retained by it. As such, the second defendant was required to pay a rental of a sum of `3,40,704/- at the rate of `12/- per square foot for an area of 2,184 sq.feet. Even after surrendering the vacant possession of the said northern portion to the plaintiff, the second defendant failed to make good the rental due in respect of the said retained portion. Several reminders were made to the defendants by the plaintiff-firm in this regard which yielded no result. This made the plaintiff – firm to institute a suit against the defendants. Since the second defendant has passed on the blame upon the first defendant stating that a portion of the defendants is shifted from the schedule building to FKCCI building in the second floor of K.G.Road Bengaluru, the first defendant was also made a party as both the defendants are jointly and severally liable to pay dues to the plaintiff - firm. The plaintiff has claimed a sum of `3,40,704/- as the principal amount as arrears of rent for the period from 16-08-2005 to 15-09-2006; a sum of `1,32,873/-
towards interest at the rate of `12% per annum from 15-09-2006 and the legal notice charges of a sum of `2,500/-, thus totally a sum of `4,76,077/-.
3. In response to the summons served upon them, the defendants appeared through their counsel and filed their Written Statement, wherein they have denied the material averments made in the plaint regarding retention of the northern half portion of the second floor measuring an extent 2,184 sq. feet for rent at the rate of `12/- per sq. foot. However, the defendants admitted their occupation of the said third and fourth floors of the Commercial Complex and tenancy under the plaintiff - firm.
However, it is the specific contention of the defendants that after they handed over the vacant possession of the third and fourth floors of the building to the plaintiff on 15-08-2005, they had even vacated the second floor also except retaining a small portion of it on the northern side measuring 10’x10’ (100 sq.ft.) as a DLC Exchange only. Excepting the same, the keys of the entire second floor were handed over to the plaintiff firm and the plaintiff was in control over the same. Therefore, they denied that they are in any way liable to pay the suit claim to the plaintiff - firm.
4. Based on the pleadings of the parties, the following issues were framed by the Trial Court for its consideration:-
“1. Whether the plaintiff proves that the defendants were in occupation of the Northern half portion of the 2nd floor of the building measuring 2,184 sq.feet as tenants from 16.08.2005 till 15.09.2006 at the rate of Rs.12/- per sq. feet as alleged in paras 5 and 6 of the plaint?
2. Whether the plaintiff further proves that the defendants are liable to pay the arrears of rent for the period from 16.08.2005 to 15.09.2006 amounting to Rs.3,40,704/- as alleged?
3. Whether the plaintiff is entitled to recover interest at 12% p.a. on the rent due from 15.09.2006 as alleged?
4. Whether the defendants prove that inspite of repeated request, plaintiff did not show any interest to execute the written Agreement in respect of small portion of the building on the 2nd floor towards Northern side measuring 10 feet x 10 feet as alleged in para No.2 of the written statement?
5. Whether the plaintiff is entitled to recover Rs.4,76,077/- with interest at 12% p.a., if not to what amount?
6. To what relief, if any the parties are entitled?”
5. In order to prove its case, the plaintiff – firm got examined one Sri. S. Gopalakrishnaiah Chetty, said to be the Managing Partner and authorised signatory of the plaintiff – firm, as PW-1 and got produced and marked documents from Exs.P-1 to P10. On behalf of the defendants, one Sri.K.S. Bhanuprakash, its Assistant General Manager was examined as DW-1 and one Sri.H. Puttaswamy said to be working as AGM (Cable Construction), Bangalore Telecom District, was examined as DW-2. On behalf of the defendants, an authorisation letter dated 03-08-2012 was marked as Exhibit D-1.
6. After hearing both side, the Trial Court answered issues No.1, 2 and 5 partly in the affirmative, issues No.3 and 4 in the affirmative and vide its impugned judgment dated 09-03-2015 proceeded to decree the suit of the plaintiff in part holding the defendants jointly and severally liable to pay a sum of `15,600/- to the plaintiff firm with interest at the rate of `12% per annum from 15-09-2006 till realisation of the decretal amount. It is against the said judgment and decree, the plaintiff firm has preferred this appeal praying to set aside the impugned judgment and decree and to allow the suit of the plaintiff.
7. Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned counsel for the appellant/plaintiff- firm and learned counsel for the respondents/defendants.
9. Perused the materials placed before this Court including the memorandum of appeal and the impugned judgment.
10. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
11. In the light of the above, the points that arise for my consideration in this appeal are:-
[i] Whether I.A.No.1/2019 filed under Order XLI Rule 27 r/w. Section 151 of the Code of Civil Procedure, 1908, deserves to be allowed?
[ii] Whether the plaintiff – firm has proved that the defendants were in occupation of an area measuring 2,184 sq.feet in the northern half portion of the second floor of the building as a tenant from 16-08-2005 till 15-09-2006?
[iii] Whether the plaintiff proves that the defendants are liable to pay the rent at the rate of `12/- per sq. foot for an area measuring 2,184 sq. feet for a period of thirteen (13) months from 16-08-2005 to 15-09-2006 amounting to a sum of `3,40,704/-?
[iv] Whether the plaintiff is entitled to recover interest at the rate of `12% per annum on the rent due from 15-09-2006 as alleged?
[v] Whether the judgment and decree under appeal warrants any interference at the hands of this Court?
12. Learned counsel for the appellant/plaintiff – firm in his argument submitted that the defendants at no point of time prior to they filing the Written Statement anywhere whispered that, they were in possession of only a small portion in the second floor of the building and measuring 10’x10’ (total 100 sq.ft.). Thus, it is for the first time the defendants have taken such a contention in their Written Statement. On the other hand, the plaintiff for, throughout and prior to the institution of the suit has been making it clear that the defendants are in possession of an area of 2,184 sq. feet which is the northern portion of the second floor of the building.
He further submitted that in view of the fact that the rate of rent is admittedly `12/- per sq. foot and it is also not in dispute that the defendants are in arrears of rent from 15-08-2005 till 15-09-2006, they are liable to pay the principal amount as claimed in the suit and since the lease was towards business transaction, the rate of interest is claimed at `12% per annum. However, the Trial Court has failed to appreciate the evidence in its proper perspective and erred by holding that the plaintiff could not able to establish that the defendants were in occupation of an area of 2,184 sq. feet and confined the remedy to only an area of 100 sq. feet, which is incorrect.
13. Per contra, learned counsel for the respondents/defendants in his argument submitted that, the plaintiff firm has utterly failed to establish that the defendants were in occupation of an area measuring 2,184 sq.feet. Thus issue No.1 has been answered partly in the affirmative. That being the case, the plaintiff could not able to establish the alleged possession of the southern premises to an extent of 2,184 sq. feet by the defendants. The Trial Court has rightly decreed the suit in part which does not warrant any interference at the hands of this Court.
14. It is not in dispute that the defendants were the tenants under the plaintiff - firm with respect to third and fourth floor of the building situate at 19/B, Hindusthan Complex, B.V.K. Iyengar Road, Bengaluru-
560 009. It is an admitted fact that, the second defendant surrendered and handed over the vacant possession of the entire third and fourth floor of the building and southern portion of the second floor to the plaintiff on 17-08-2005. It is also not in dispute that, the defendants had retained northern portion of the second floor of the said building which also they vacated and handed over the vacant possession of the said premises to the plaintiff on 15-08-2005. However, the only dispute between the parties is, regarding the total area which was said to be retained by the defendants in the northern portion of the second floor.
15. Through I.A.No.1/2019, which is filed under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908, the learned counsel for appellant/plaintiff has sought permission to lead additional evidence in the form of production of additional document which is said to be an office copy of the letter by plaintiff - firm to defendant No.1 dated 13-12-2005, through the said letter, he intends to show that at the earliest point of time, i.e. in the year 2005 itself, the plaintiff firm had brought to the notice of the defendants that, they are liable to pay arrears of rent of a sum of `3,40,020/- to it.
16. Admittedly, the said letter was in custody and possession of the plaintiff – firm as at the time of filing of the suit. Though the plaintiff through PW-1 has stated in the affidavit accompanying the application that, the said letter was misplaced by it and could only able to get it very recently, would not inspire any confidence to believe the same since the plaintiff being a registered partnership firm with not less than ten partners in it could able to maintain all other correspondences said to have been with the defendants, but how come that particular letter dated 13-12-2005 alone could able to be misplaced is not convincingly explained. Further, the said letter also would throw no more light than what the other exhibits would do, in the facts and circumstances of the case. As such, since the said document would be of no great avail for disposal of the matter, I am of the view that I.A.No.1/2019 does not deserve to be allowed.
17. According to the plaintiff/appellant, the said northern portion of the building which was retained by the defendants for thirteen (13) months was measuring an extent of 2,184 sq. feet, as such, the defendants are liable to pay the rent as claimed for the said entire portion of 2,184 sq.feet. However, the contention of the defendants is that defendant No.1 retained only an area of 100 sq. feet in the form of 10’x10’ for DLC Exchange, as such, they cannot be burdened with the payment of rent for the entire portion of an extent of 2,184 sq.feet.
18. In the light of the above, the evidence of PW-1 who reiterated the plaint averments even in his examination-in-chief filed in the form of affidavit evidence was that, while vacating the second, third and fourth floor of the building, the defendants had retained the northern half portion of the building which northern half portion comes to an area of 2,184 sq.feet. As such, as per the agreed rate of rent, the defendants are liable to pay the suit claim. Even in his cross–examination, he adhered to his original version. He specifically denied a suggestion that the defendants had retained only an area measuring 10’x10’ in the second floor, but not an area of 2,184 sq.feet.
In his support, PW-1 got produced and marked a letter dated 17-08-2005 said to have been written by defendant No.1 to the plaintiff firm as Ex.P-1; a copy of the letter dated 21-05-2007 by the plaintiff firm to the first defendant at Ex.P-2, along with a copy of advance receipt dated 21-05-2007 said to have been given by the plaintiff firm to the defendants; a copy of the letter by the plaintiff firm to the first defendant dated 15-07-2008 at Ex.P-3; postal acknowledgment card at Ex.P-4; two letters dated 11-08-2005 by the defendant No.1 to the plaintiff at Exs.P-5 and P-6 respectively; a letter dated 02-08-2008 by the defendant No.1 to the defendant No.2 at Ex.P-7, a copy of the legal notice dated 17-08-2009 sent on behalf of the plaintiff firm to the defendant No.1 at Ex.P-8; its postal acknowledgment card at Ex.P-9, and postal receipt at Ex.P-10.
19. DW-1 in his Examination-in-chief in the form of affidavit evidence also has reiterated the contentions taken up by the defendants in their Written Statement. Though he has admitted that the defendants were the tenants under the plaintiff firm in respect of the suit premises, however, contended that the retention of the northern portion of the second floor of the building was only to the extent of 10’x10’ (100 sq.ft.) but not to an extent of 2,184 sq.feet as alleged by the plaintiff firm. He got produced a letter of authorisation issued in his favour at Ex.D-1. In his cross-examination, the witness stated that he was in no way concerned to the transaction that took place and that he was adducing his evidence on the basis of the records. He stated, as at last on 18-04-2001, the rental agreement with respect to the building was renewed for a period of five years with effect from 1999 and as per the said rental agreement, the rent of the second floor was fixed at a sum of `39,840/- per month for an area of 3,320 sq.feet. The suggestions made to him that the defendants were liable to pay the suit claim were not admitted as true by the witness. The witness has also stated that they have no documents to show that their Department had occupied only an extent of 10’x10’ for DLC Exchange.
20. DW-2 in his examination-in-chief in the form of affidavit evidence has stated that, the defendants who were the tenants under the plaintiff – firm, after handing over the vacant possession of a portion of the building, had retained only an area measuring 10’x10’ (100 sq.ft.) in the second floor. The said space was used as a DLC Exchange. He stated that the defendants were not in occupation of an area of 2,184 sq.feet. after they vacated a portion of the second floor of the building. This witness in his cross-
examination stated that he has neither worked in the said premises nor was posted there. He also stated that, they have no records regarding the asking agreement from the plaintiff for continuing to occupy only 10’x10’ (100 sq.ft.) in the second floor. He stated that he does not know whether the area of northern wing is 2,184 sq.feet. The denial suggestions made to him were not admitted as true by the witness.
21. A careful analysis of the pleading and the evidence led by the parties would go to show that, after vacating the third floor and fourth floor of the building in its entirety on 17-08-2005, the defendants had retained a portion of the premises in the second floor of the building. Ex.P-1 would go to show that, the defendant No.1 has put it in writing in the form of a letter to the plaintiff – firm of making over the keys, wherein after saying that it has handed over the keys of northern and southern wings in the third and fourth floors, he has mentioned that in the second floor, they have handed over a globe key (no number) with respect to southern wing only. Thus, the said document at Ex.P-1 coupled with the pleading of the plaintiff and also the pleading of the defendant No.2 would go to show that, some portion in the second floor was retained by the defendants while vacating and handing over the vacant possession of the remaining portion on 17-08-2005 in favour of the plaintiff - firm.
22. According to the plaintiff – firm, the said retention of a portion of the second floor of the building by the defendants was the northern wing measuring an extent of 2,184 sq. feet. Admittedly, there is no separate or fresh agreement between the parties with respect to that portion of the property which is said to have been retained by the defendants after vacating and handing over the remaining portion of the building on 17-08-2005. The plaintiff firm passing on the blame upon the defendants stated that, the defendants did not come forward to enter into an agreement, whereas the defendants say that no agreement was entered into between them with respect to the retained portion in the second floor of the building. However, the fact remains that with respect to the area which was retained by the defendants in the second floor of the building, there is no any written agreement between the parties. However, two years after the vacating of the third floor, fourth floor and a portion of the second floor of the building as per Ex.P-1, the plaintiff has come up with a letter as per Ex.P-2 addressed to defendant No.1 wherein he has, for the first time, mentioned that, the portion that was retained by the defendants in the second floor on the Northern wing was measuring an extent of 2,184 sq.feet. In the said letter, he has claimed the arrears of rent from 16-08-2005 to 15-09-2006 to a total sum of `3,40,704/-. The said amount was demanded from the defendants by the plaintiff through the said document. The receipt of the said letter has not been denied or disputed by the defendants. As such, not later than 21-05-2007 itself, the defendants came to know that the plaintiff is contending that the defendants were in possession of an area to an extent of 2,184 sq.feet and claiming arrears of rent of a sum of `3,40,704/-.
23. Ex.P-3 is one more letter by the plaintiff – firm to the defendants and dated 15-07-2008 wherein the plaintiff has reiterated the demand made by it in Ex.P-2. However, in the said letter, he has not stated the measurement of the area under occupation of the defendants, but has only claimed alleged arrears of rent amounting to `3,40,704/-. Admittedly, the defendants have not responded to or replied to either of these two letters. As such, at the earliest point of time, when the defendants had an opportunity to deny that they were not given possession of an extent of 2,184 sq.feet, but they were in possession of only an extent of 10’x10’ (100 sq.ft.) have not brought to the notice of the plaintiff at that time.
24. Exs.P-5 and P-6 are two letters by Defendant No.1 to the plaintiff firm and both dated 11-08-2005 wherein also, the defendants have admitted that they have retained the northern portion of the second floor, but they have not mentioned as to what exactly the measurement of the area retained by them. Merely because they have stated in Ex.P-6 that the area retained by them as northern portion in the second floor was a DLC room, by that itself, it cannot be inferred that the said DLC room was measuring an extent of 10’x10’. Had that been the case, nothing had prevented the defendants from mentioning in their Written Statement as well in their evidence through DW-1 and DW-2 regarding pre- described specifications, if any, with respect to DLC Exchange/room, which also they have not done. As such, merely because Ex.P-6 mentions that the retained portion was used as a DLC room, by that itself, it cannot be inferred that, the retained area was measuring only an extent of 10’x10’ (100 sq.feet).
25. Ex.P-7 which is one more letter by defendant No.1 to defendant No.2, however, under a copy to the plaintiff, would also fail to reveal the area that was retained by the defendants in the second floor. Though it shows that in the said retained portion, a DLC Exchange was installed by Area Manager (Central), but by that itself, it cannot be inferred that the said DLC room was confined to an extent of 10’x10’ (100 sq.feet).
26. Added to the above, it also cannot be ignored of the fact that, the plaintiff firm before institution of the suit, got issued a legal notice upon the defendants vide Ex.P-8. Even in the said legal notice also, the plaintiff reiterated that the area of the building leased to the defendants was measuring in total 9,445 sq.feet and that after vacating the third and fourth floors and a portion of the second floor by the defendants, still, the defendants continued to retain an extent of 2,184 sq.feet with them.
27. Admittedly, the defendant even after receipt of the said legal notice did not bother to reply to the said legal notice. As such, when the defendants had every opportunity to deny the contention of the plaintiff that they had retained an area measuring an extent of 2,184 sq.feet, they did not deny the same. Not only that, even when a specific claim towards the arrears of rent amounting to a sum of `3,40,704/- calculated at the rate of `12/- per sq. foot for an area measuring an extent of 2,184 sq. feet was made, the same was also not specifically denied by the defendants in any manner by responding to Ex.P-4 or Ex.P-8. Thus, the conduct of the defendants goes to show that when it had several earlier opportunities to deny the contention taken up by the plaintiff firm regarding the measurement of the area in its occupation and also the liability to pay the rent, the defendants in order to avoid its future liability towards the plaintiff firm, was required to deny the same which they have not done.
28. Though the above finding may give an impression that, the defendants must have retained a portion of the second floor measuring an area of 2,184 sq.feet, by such an impression itself, it cannot be held that the plaintiff firm could able to establish that the defendants were in possession of a area measuring not less than 2,184 sq.feet in the second floor. It is for the reason that, even according to the plaintiff firm, the entire three floors, i.e. second, third and fourth floors were identified as two wings, i.e. as Southern wing and the Northern wing. Neither the pleading nor the evidence of the parties would go to show as to what was the measurement of the southern wing and the northern wing in each of the floors. The plaintiff firm in its legal notice at Ex.P-8 though has mentioned that the total area under lease to the defendants was measuring an extent of 9,445 sq. feet, but there is no mention about the measurement of Southern wing and Northern wing in each of the floors even in the said documents also. The evidence of PW-1 is also on the same lines and PW-1 also does not give as to how much the southern and northern wing in each floor was measuring. The only evidence in which some statements regarding the measurements of the floors has come is, in the cross- examination of DW-1, wherein the witness has stated that as per the rental agreement, the rent of the second floor was `39,840/- per month for an area of 3,320 sq.feet. To a suggestion made to him, he has stated that he does not know that as per the said rent agreement, the rent of the third and fourth floors was a sum of `73,500/- per month for an area of 6,125 sq.feet. Thus, the total area of the second floor is proved to be only 3,320 sq.feet. In the absence of a mention about the total floor area either in the plaint averment or in any evidence of the parties, either oral or documentary, it has to be inferred that the bifurcation of the said floor into two wings as southern and northern has to be considered as an equal bifurcation only. Otherwise the plaintiff was expected or required to mention it in any of the documents including his plaint and the Exhibits in ‘P’ series that the bifurcation of southern and northern wings was not in equal halves. Therefore, even if it is taken that the plaintiff could able to establish that the defendants were in possession of northern wing (northern portion of the second floor), then, that cannot exceed an extent of 3,320 sq.feet/2=1,660 sq.feet. Therefore, it can only be held that the plaintiff could able to establish that the area which was retained by the defendants in the second floor after vacating and handing over the vacant possession of the remaining portions of the suit property on 17-08-2005 was a total area measuring an extent of 1,660 sq.feet in the second floor only.
29. With respect to the quantum of rate of rent is concerned, admittedly, the rate of rent agreed to between the parties for the entire leased premises was at the rate of `12/- per sq.foot. The same is not denied or disputed from the defendants’ side. Further, even in the cross-examination of DW-1, as observed above, the witness has stated that towards the second floor, measuring an area of 3,320 sq.feet, the defendants were paying a rent of a sum of `39,840/- per month. The said rent comes at a rate of `12/- per square foot. Thus, the rent that was payable by the defendants to the plaintiff for an extent of 1,660 sq.feet at the rate of `12/- per sq. foot would be 1,660 sq.feet x `12/- = `19,920/- per month.
According to plaintiff, the defendants are due for the rent from 15-08-2005 to 15-09-2006 when the defendants vacated the said portion in the second floor also in favour of the plaintiff-firm. The defendants apart from not specifically denying the said arrears of rent also, have not produced any document to show that they have paid the arrears of rent for the said period. As such, the total amount that is due as rent from 15-08-2005 to 15-09-2006 for a period of thirteen (13) months from the defendants to the plaintiff would be at a sum of `19,920/- x 13 months which comes to `2,58,960/-. It is this amount that the defendants are liable to pay to the plaintiff-firm as arrears of rent.
30. The plaintiff has also claimed interest at the rate of `12% per annum on the outstanding liability. Neither of the parties have produced the alleged lease agreement. The reasons for non-production of the said document is not known. It is not the case of the parties that it was an oral agreement between them.
That being the case, when an agreement of lease is said to be between a partnership firm and a Government Undertaking, it cannot be presumed that, the lease was merely under an oral agreement.
In the absence of any agreed terms between the parties regarding payment of interest upon the arrears of rent and also considering the fact that the defendant establishment is a Service oriented Sector, I am of the view that, the rate of interest awarded at `12% per annum is on the higher side and the same is required to be confined to only at the rate of `9% per annum from 15-09-2006 till realisation of the decreetal amount. It is only to this extent, the judgment and decree under appeal deserves an interference and the appeal of the plaintiff deserves to be allowed.
Accordingly, I proceed to pass the following:-
O R D E R [i] I.A.No.1/2019 filed under Order 41 Rule 27 read with Section 151 of the Code of Cvil Procedure, 1908, is hereby rejected;
[ii] The appeal is allowed in part;
[iii] The impugned judgment and decree dated 09-03-2015 passed by the learned XL Additional City Civil and Sessions Judge (CCH-41) at Bengaluru, in O.S.No.422/ 2010, is hereby modified;
[iv] It is held that the defendants are jointly and severally liable to pay to the plaintiff - firm a sum of `2,58,960/- together with interest there upon at the rate of `9% per annum from 15-09-2006 till realisation of the decreetal amount;
[v] Draw the modified decree accordingly.
Registry to transmit a copy of this judgment together with the Lower Court records to the Court below without delay.
Sd/- JUDGE BMV*