IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD REGULAR FIRST APPEAL NO.1378 OF 2018 (RES) BETWEEN:
SRI. GHOUSE MOHIUDIN SON OF LATE RAJA SAHAB AGED ABOUT 57 YEARS RESIDING AT NO.335 2ND FLOOR, RMV EXTENSION SADASHIVANAGAR BENGALURU – 560 080. ... APPELLANT (BY SRI. L.M. CHIDANANDAYYA, ADVOCATE) AND:
SRI. ASHRAF SHUKOOR SON OF ABDUL SHUKOOR AGED ABOUT 56 YEARS RESIDING AT NO.25/1 NORRIS ROAD, FACING WALKER LANE RICHMOND TOWN BENGALURU – 560 025. ... RESPONDENT (BY SRI. SANATHKUMAR SHETTY K., ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 13.06.2018 PASSED IN O.S.NO.4481 OF 2014 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR EJECTMENT, ARREARS OF RENT, DAMAGES.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 28.01.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT The present appeal is because of adjudication of the dispute between a landlord and his tenant in original proceedings. The respondent – landlord initiated a suit in O.S.No.4481 of 2014 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru (CCH-23), (for short, ‘learned Civil Court’) for, amongst others, ejectment of appellant – tenant from his commercial property – suit schedule property referred to as ‘Subject Property’, for arrears of rent and damages.
2. This suit in O.S.No.4481 of 2014 is decreed by the impugned judgment and decree dated 13.6.2018 directing the appellant – tenant to vacate and hand over the vacant possession of the Subject Property and to pay a sum of `4,57,500/- as arrears of rent while declaring that the respondent – landlord is entitled for a sum of `3,00,000/- as reimbursement of the costs incurred for providing additional electricity supply to the Subject Property. Further, an enquiry is ordered under Order XX Rule 12 of the Code of Civil Procedure, 1908 as regards the damages claimed by the respondent – landlord. The appellant – tenant is in appeal challenging this judgment and decree dated 13.6.2018.
3. There is no dispute that the respondent inducted the appellant as a tenant in possession of the Subject Property under the Lease Deed dated 05.09.2013. The Lease Deed dated 05.09.2013, being registered, there is no dispute about the terms thereof. The lease of the subject property in favour of the appellant is for a period of nine years that will end in 2022. The rent payable is `75,000/- per month with escalation at the rate of 5% per annum. The appellant has paid a sum of `8,50,000/- as refundable Security Deposit. The lease has commenced from September 2013 and the appellant is required to pay the rent at the agreed rate for the months commencing from September 2013. The appellant, having entered possession of the subject property as a tenant, has commenced his business in garments/stitching. However, the appellant and the respondent have been at loggerhead from the very early days of tenancy.
4. The dispute is because of non-payment of rent and power service secured for the Subject Property. The respondent contends that the rents have not been paid for the months commencing from November, 2013, and the appellant contends that the rents have been paid from the month of March, 2014. When the respondent caused a Legal Notice for termination of lease for non-payment of rent and the failure to reimburse the cost of securing additional power, the appellant has responded contending that the respondent had failed to provide requisite power supply to the subject property despite assurance to the contrary and therefore, the appellant was entitled to withhold the rents.
5. The respondent’s specific response to such response was that the subject property, even as of the date of lease, was serviced with 10 KVA power. But, the appellant requested for increase in the power to 26 KVA assuring to reimburse cost, which was estimated at `4,00,000/-. It was agreed that the appellant would pay `3,00,000/- as reimbursement as the security deposit of `8,50,000/- already included a sum of `1,00,000/- for securing 10 KVA power. Therefore, he initiated necessary process for enhancement in power supply. The respondent also incurred a sum of `3,00,000/-. When the appellant’s application for enhancement in power was under process, the appellant requested for further enhancement to 56 KVA. Though the respondent repeatedly approached the appellant for defraying cost for obtaining such enhanced power, the appellant did not respond. Meanwhile, the respondent, despite expressed terms to pay rent without default and the agreed consequence for default in paying rents, withheld the rents.
6. The appellant countered that the respondent’s assurance was to provide power supply of 35 KVA, but the respondent had reneged on that. Therefore, the respondent hired a generator to complete the interiors costing a sum of `1,00,00,000/- and commenced his business. Ultimately, the respondent secured enhanced power of 26 KVA during the month of July 2014. In the interregnum, i.e., in the month of June 2014, the respondent commenced the suit for ejectment and other reliefs. Therefore, the plaintiff is not entitled to such relief.
7. In the aforesaid circumstances, the dispute in the suit was in a narrow compass of whether the respondent was able to establish breach of conditions of the Lease Deed with the appellant withholding the rents; whether the respondent was able to establish valid termination of lease and therefore, entitled for other reliefs. The learned Civil Court, upon completion of the pleadings, framed issues in these regards. The respondent examined himself as PW.1 and marked exhibits P.1 to P.9. The appellant examined himself as DW.1 and marked Exhibit D.1.
8. The learned Civil Court in answering the Issues framed as regards valid and legal termination of tenancy, arrears of rent and other Issues. (which relate to consequential relief of arrears of rent, damages and recovery of amounts incurred by the respondent securing additional power supply) has found in favour of the respondent. The learned Civil Court has, with reference to the pleadings and the appellant’s own admission in evidence, concluded that the appellant is unable to establish that there was an assurance by the respondent to provide 56 KVA power to the Subject Property. Interestingly, the appellant has contended in the written statement that the assurance by the respondent was to provide 35 KVA power. However, the evidence on record, including the terms of Lease Deed, establish that the subject property had 10 KVA power even as of the date of inception of the tenancy, and the respondent, as requested by the appellant, had secured additional power of 26 KVA. The appellant has also failed to establish that he was entitled to withhold the rents on the ground that the respondent did not secure additional power for the Subject Property.
9. Further, the learned Civil Court has also not accepted that the withdrawal of the rental arrears deposited by the appellant during the pendency of the suit tantamount to waiver of termination of tenancy in view of the appellant’s own admission in evidence that he had deposited the amount in Court as damages. Furthermore, the learned Civil Court has concluded that in view of the terms of Lease Deed as per Clause 18, the respondent is entitled to seek ejection of appellant from the subject property on the ground that the appellant had forfeited the lease as contemplated under Section 111(g) of the Transfer of Property Act, 1882. The present appeal is filed, as canvassed by the learned counsel for the appellant, in the following premises. The legal notice dated 14.05.2014 (Ex.P.2) does not comply with the requirements of Section 114(A) of the Transfer of Property Act, 1882, and therefore, there cannot be an order for ejectment during the subsistence of the agreed period. It is undisputed that the appellant had deposited a sum of `8,50,000/- as refundable security deposit and arrears, even according to the respondent as of the date of institution of the suit, was `4,57,500/-. If the appellant had adjusted `4,75,000/- from the security deposit, there could not have been any arrears. The learned Civil Court has also erred in its conclusion as regards the failure on the part of the respondent to provide power supply to the subject property.
10. The appellant does not dispute that his defense was that the respondent had promised to secure 35 KVA power, but the Lease Deed mentions that 10 KVA power was available as of the date of the lease, and presently, the Subject Property has 26 KVA power. The appellant does not dispute such enhanced power is available in the Subject Property from the month of July 2014. The appellant does not dispute that the appellant, after being putting in possession of the subject property vide the registered Lease Deed dated 05.09.2013, has commenced his business, and has continued his business without any interruption. In fact, as considered by the learned Civil Court, the appellant has been categorical in his admissions in evidence that the power supply for the Subject Property has been sufficient and he is successfully running his business from the Subject Property.
11. Further, the appellant does not dispute that he has stated in his evidence that he has deposited amounts with the learned Civil Court during the pendency of the proceedings as damages. The learned counsel for the respondent, at the time of hearing, submitted that the appellant, even as of the date, has not deposited the entire accrued amount and the outstanding is substantial. As against such accrual, the learned counsel for the appellant sought permission to deposit a sum of `4,00,000/- as a bona fide gesture.
12. Furthermore, the appellant's case as regards non-compliance with the provisions of Section 114(A) of the Transfer of Property Act, 1927 would be tenuous if examined in the light of the terms of the registered Lease Deed as considered by the Learned Civil Court. It is held that clause 18 of the registered Lease Deed permits the respondent to terminate the lease, if there was failure to pay rents for consecutive months and renter possession.
The appellant's counsel is unable to point out any infirmity in such finding with reference to the appellant's pleadings or evidence.
13. In the totality of the aforesaid facts and circumstances of the case, we are of the considered opinion that the impugned judgment and decree does not suffer from any irregularity or perversity. Therefore, the appeal is dismissed.
14. In view of dismissal of the appeal, IA No.1 of 2018 does not survive for consideration and the same is disposed of.
SD/- SD/-
JUDGE JUDGE SA