IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 23895 OF 2018 (GM-CPC) BETWEEN:
SRI BHAGWANDAS SHARMA S/O LATE G.D.SHARMA AGED ABOUT 50 YEARS, NO.30, NORRIS ROAD, RUSTUMJI APARTMENTS, FLAT NO.C-4, 3RD FLOOR, RICHMOND TOWN, BENGALURU-560 025.
(BY SRI. P.D.SURANA, ADVOCATE) AND:
1. SMT.KRISHNAVATHI SHARMA W/O LATE G.D.SHARMA, AGED ABOUT 74 YEARS NO.21/1 (NEW NO.82) SPENCER ROAD, II CROSS, FRAZER TOWN, BENGALURU-560 005 ALSO RESIDING AT PLOT NO.50, 673/1, CENTURY PARK LAYOUT, NAZARABAD MOHALLA, MYSORE-570 010 AND ALSO AT FLAT NO.406, S.M.R. VINAY SERENE NO.70/7, ROBERTSON ROAD, FRAZER TOWN, BENGALURU-560 005.
…PETITIONER 2. INDIAN OVERSEAS BANK REP. BY ITS MANAGER, REGIONAL OFFICE, NO.10/1, LAKSHMINARAYANA COMPLEX, 3RD FLOOR, PALACE ROAD, BENGALURU-560 025. … RESPONDENTS (BY SRI K.G.RAGHAVAN, SR. COUNSEL A/W MRS.JYOTHI BHAT & MR. VIJAY NARAYAN, ADVOCATES FOR R-1; SRI. DEEPAK, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-G ORDER DATED 13TH AUGUST, 2013 MADE ON IA NO.9 IN O.S.NO.254/2009 ON THE FILE OF THE COURT OF XXV ADDL. CITY CIVIL JUDGE AT BANGALORE CITY (CCH NO.23) AND REVERSE THE SAME, BESIDE GRANTING SUCH OTHER RELIEFS AS THIS HON’BLE COURT BE DEEMED FIT TO GRANT, ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner being the 2nd defendant in an ejectment suit in O.S.No.254/2009 is grieving before the Writ Court against the order dated 13.08.2013, a copy whereof is at Annexure-G, whereby his application in I.A.No.9 filed u/s.151 of CPC, 1908 for a direction to the respondent- plaintiff to deposit in the Court below all that rental money she has withdrawn on 25.01.2011. After service of notice the respondents having entered appearance through their counsel, resist the writ petition.
2. Brief facts of the case:
(a) Petitioner happens to be son of the 1st respondent; the 2nd respondent happens to be tenant of the suit premises; there are several suit proceedings inter alia between them and one of them is the aforesaid suit; petitioner gained entry to the fray of suit as a defendant vide judgment dated 07.09.2011 made by a Co-ordinate Bench of this Court in W.P.No.11666/2010 (GM-CPC) and connected writ petitions; a copy of this order is at Annexure-D;
(b) on the application of the respondent-plaintiff, the learned trial Judge vide Order dated 10.02.2010 had directed the respondent-Bank being the tenant to deposit regularly the rental amount in a sum of Rs.3,40,000/- per month plus Rs.17,000/- towards maintenance charges; the amount in accumulation on regular deposit being made by the tenant, totally in a sum of Rs.41.99 lakh was permitted to be withdrawn by the respondent-plaintiff on 25.01.2011;
(c) as already mentioned above, petitioner in terms of the aforesaid judgment became an added defendant to the suit; the said judgment had directed the Court below to invest the amount in deposit in the bank, subject to outcome of the suits; banking on the same the petitioner had made the subject application for a direction to the respondent-plaintiff to return to the Court all that amount she had withdrawn so that the same can be invested in the bank; this application having been rejected, the present writ petition is filed;
(d) after service of notice the respondent-plaintiff having entered appearance through her counsel has filed the Statement of Objections resisting the writ petition; the respondent-tenant-Bank too is represented through its panel counsel.
3. Having heard the learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioner for the following reasons:
(i) the contesting parties are none other than a son and the mother; the respondent-tenant happens to be the Bank; rental value and the maintenance price are not in dispute; the petitioner came to be impleaded as the 2nd defendant pursuant to the judgment dated 07.09.2011 made by this Court; the trial Judge’s order refusing petitioner’s impleadment having been quashed, this Court observed as under:
“Petitioners are permitted to be impleaded in the suits as respondents. The amount deposited in the Court below shall be kept in the Bank, subject to the result of the suits”
(ii) the aforesaid judgment having been unsuccessfully challenged by the respondent-plaintiff in SLPs, the Apex Court vide order dated 04.04.2012 declined interference, with the following observations:
“Special Leave Petitions are dismissed. However, it is observed that by impleadment of respondent No.1, the controversy in the suits filed by the petitioner shall not be enlarged and the question of rival title shall not be gone into in those suits”.
Thus going by the above observations, it is bit difficult to countenance the contention of the respondent-plaintiff that the direction made by this Court requiring the amount to be deposited in the Bank stands modified or diluted. Had it been the intent of the Apex Court, the language of its order would have been much different, especially when the observations were made sans notice to the petitioner, at the stage of admission;
(iii) the contention of the respondent-plaintiff that the direction embodied in the judgment of this Court refers not to the amount already withdrawn by her but it envisages the rental amount to be periodically deposited by the respondent-bank for the period post withdrawal, cannot be accepted without straining the plain language of the said judgment; had that been the meaning of the direction, again the text of the judgment would have been bit different; the intent of the direction is not far to seek; whatever income accrues from the subject property, needs to be invested in the bank so that it would earn the interest and the deposit would be subject to outcome of the suits; the super added contention that the direction is prospective in operation again is liable to be rejected for the same reason;
(iv) there is yet another reason for negativing the above contention of the respondent-plaintiff: the Co- ordinate Bench which was hearing the writ petitions in which the direction came to be issued was not notified by the plaintiff about the factum of withdrawal of the deposit that is in huge sum; the submission of the petitioner that he had not entered the fray of the suit till after the judgment was rendered on 07.09.2011 and therefore he was not in the know of the withdrawal of the amount by the plaintiff on 25.01.2011, gains acceptance; thus there is some unconscionable act on the part of the plaintiff side; be that as it may;
(v) it hardly needs to be mentioned that the direction incorporated in the judgment of this Court arose from the equities of the suits pending; the amount that accrues as income from the subject property because of the lease in question needs to be held in trust by the Court below subject to outcome of the suits; there is dichotomy in the contention of the plaintiff that the rental amount withdrawn by her should be retained with her and the rental amount to be deposited subsequent to her withdrawal should be kept in bank for earning interest; accepting such a dual stand, militates against the equities;
(vi) the contention of the plaintiff in view of the observation of the Apex Court, no plea founded on rival claim for the title can be entertained in the pending suits and no final relief in relation to amount in deposit can be granted in the said suits and that if final relief cannot be granted, the interim relief also cannot be granted, appears to be too farfetched an argument especially in view of dismissal of plaintiff’s challenge before the Apex Court to the judgment of this Court which contend the direction for depositing the rental amount; in fact this is not the stand taken up by the plaintiff in her Statement of Objections; it is a settled position of law that an order may be vulnerable for challenge, but till on appropriate challenge, the said order is varied or vacated, it continues to be valid for all practical purposes vide State of Punjab vs. Gurdev Singh, AIR 1992 SC 111 paras 5 to 7; these contentions would have been advanced in the case in which the direction came to be issued and not for disobeying the direction;
(vii) the contention of the petitioner that plaintiff’s undertaking to furnish the property comprised in her memo by way of security in lieu of deposit, would not serve the purpose, also does not impress the court; the Memo secures the interest of the petitioner who has laid a challenge to the impugned order after brooking a long delay of five years; not even a whisper is made in the writ petition for explaining the same and not even in his arguments; the memo filed by the 1st respondent-plaintiff dated 25.11.2019 reads as under:
“Memo on behalf of respondent The Respondent No.1 in the interest of justice and equity, hereby submits that the Respondent No.1 hereby undertakes to furnish 2nd floor of the Commercial Complex, Lakshminarayan Complex, situated at 10/1, Palace Road, Vasanthnagar, Bengaluru-52 as security in lieu of the deposit amount withdrawn, as prayed for in the above mentioned writ petition”
(viii) it is submitted on behalf of the respondent- plaintiff that the security furnished by way of above memo shall also cover the interest which would have accrued on the amount withdrawn by her, had it been invested in an interest earning deposit in bank; thus, the equitable interest of the parties is secured by way of memo and also the additional undertaking given by the plaintiff’s side at the time of hearing this writ petition.
In the above circumstances, this writ petition succeeds in part; the impugned order is set at naught; the property furnished by way of security by the respondent- plaintiff through the subject memo coupled with additional undertaking for covering the interest component is taken on record; the 1st respondent-plaintiff is directed to file within four weeks in the Court below an affidavit furnishing the subject property by way of security for the sum of Rs.41.99 lakh and also the interest at the rate of 9% per annum that would have accrued due thereon w.e.f. 25.01.2011 till and subject to outcome of all the suits in question.
It is open to the learned Principal District Judge/Principal City Civil Judge, Bengaluru City to transfer all the suits between the parties to one single court for common trial and disposal or otherwise.
The observations made hereinabove being confined to disposal of this writ petition, shall not in any way influence the trial & decision making in the subject suits.
No costs.
Sd/- JUDGE Snb/