IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.1212/2013(RES) BETWEEN:
SRI. JAWAHAR SARATHY P AGED 53 YEARS S/O. LATE T. PARTHASARATHY R/AT NO.203, 1ST FLOOR 12TH B MAIN ROAD 6TH BLOCK, RAJAJINAGAR BENGALURU-560 010. ... APPELLANT (BY SRI. GIRIDHAR S.V., ADV.) AND:
1. VIJAYA BANK A BODY CORPORATE CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKINGS) ACT, 1980 HAVING ITS OFFICE AT NO.41/2 M.G. ROAD, TRINITY CIRCLE BENGALURU-560 001.
2. VIJAYA BANK REGIONAL OFFICE PRIMEROSE ROAD BRANCH OFF M.G. ROAD BENGALURU-560 001.
3. VIJAYA BANK BILEKAHALLI BRANCH BANNERGHATTA ROAD BENGALURU-560 076. ... RESPONDENTS (SRI. K.C. ARIGA, ADV. FOR R1-R3) THIS RFA IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 28.03.2013 PASSED IN F.D.P.NO.23/2009 ON THE FILE OF THE X ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, PARTLY ALLOWING THE PETITION FILED UNDER ORDER 20 RULE 12 OF CODE OF CIVIL PROCEDURE.
THIS RFA COMING ON FOR FURTHER ARGUMENTS, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant challenging the judgment and order dated 28.03.2013 passed in F.D.P.No.23 of 2009 instituted under Order 20, Rule 12 of the Code of Civil Procedure for holding an enquiry and determination of the damages suffered by the appellant on account of failure on the part of the respondents to quit and deliver vacant possession after termination of the tenancy.
Brief facts of the case are as follows:
2. The appellant has filed the suit in O.S.No.7097 of 2006 for the relief of ejectment, damages and other consequential reliefs. The respondents appeared through their counsel and contested the matter and thereafter, the Court below decreed the suit with cost. Being aggrieved by the said judgment and decree, the respondents herein have preferred Regular First Appeal No.1023 of 2008, the same was dismissed. Thereafter, the appellant has filed the Final Decree Proceedings against the respondents for holding an enquiry and determination of damages. The respondent No.3 appeared before the Court below and filed its objection statement. The Court below, after considering the evidence of both the parties, allowed the petition filed under Order 20, Rule 12 of the Code of Civil Procedure in part directing the respondents herein to pay an additional sum of Rs.11,000/- per month as mesne profit to the petitioner for the period from 01.06.2006 to 31.12.2010. Being aggrieved by the said order of the Trial Court, the appellant/petitioner has filed the present appeal contending that the amount as determined by the Trial Court in Final Decree Proceedings is very meager.
3. In this appeal, the appellant would contend that the Court below has relied upon the document produced in Xerox which is neither marked nor produced in evidence. The Court below has relied upon the alleged rental agreement between Bhagyalakshmi and Srinath. The said document was neither pleaded in evidence nor the bank was beneficiary under the said deed and the said document was not produced in the evidence to substantiate the said contention. Therefore, the order passed in the Final Decree Proceedings cannot be sustained. It is contended that the very approach of the Trial Court in relying upon the lease agreement is null and void and is directly in conflict with the provisions of Section 49 of the Registration Act, 1908. Section 49 of the said Act specifically prohibits the Court from relying upon any document registration of which is compulsory under Section 17 of the said Act. On the same ground, the lease agreement was not permitted to be relied upon by the bank in the suit and in the appeal. The Court below however has relied upon the contention of the existence of void document and held that if not for the determination of tenancy, the appellant would not be entitled to damages as claimed for. The very approach of the Trial Court is perverse and therefore, it requires interference of this Court by enhancing the damages as Rs.23,000/- per month as against Rs.11,000/- per month granted by the Court below. Hence, prayed this Court to modify the order passed in F.D.P.No.23 of 2009, insofar as the same relates to refusal of the Court in granting a sum of Rs.11,000/- per month as damages out of Rs.23,000/- as claimed.
4. The learned counsel appearing for the appellant also in his argument vehemently contended that the Court below has committed an error in not awarding the damages as claimed in the petition, inspite of the documents Exs.P1 to P15 (a) to (f) are got marked. The very approach of the Trial Court is very erroneous and only on hypothesis determined an amount of Rs.11,000/- per month instead of Rs.23,000/- as claimed. Hence, it requires interference of this Court.
5. Per contra, learned counsel appearing for the respondents would contend that the lease period is for a period of ten years and before expiry of the said period, ejection suit was filed in the year 2006 itself and in terms of the agreement, the respondents were paying the rent of Rs.27,115/- per month and the Court below taking into consideration the period till vacating the premises, reasonably enhanced the amount and awarded an amount of Rs.11,000/- per month as additional damages and there are no grounds to interfere with the judgment and order of the Court below.
6. Having heard the arguments of learned counsel appearing for the appellant and learned counsel appearing for the respondents, the points that arise for consideration of this Court are:
1. Whether the Court below has committed an error in not awarding an additional amount of Rs.23,000/- per month towards mesne profits as claimed and whether it requires interference of this Court?
2. What order?
Point Nos.1 and 2:
7. Having considered the material on record, there is no dispute with regard to the fact that the appellant has claimed an amount of Rs.23,000/- per month as mesne profits from 01.06.2006 to 31.12.2010. The main contention of the appellant is that, at the time of termination of tenancy by issuing legal notice on 12.06.2006, the respondents were paying a rent of Rs.27,115/- and the same rent was continued till vacating the premises and that the respondent No.3 was running banking business in the leased premises situated in the ground floor and schedule premises is situated at Banneghatta Main Road, which is prominent commercial locality having various business on commercial buildings and residential apartments. It is the further contention of the appellant that, this Court while dismissing the appeal confirmed the right of the appellant to seek adjudication of mesne profits as per Order 20, Rule 12 of the Code of Civil Procedure and hence, the petition was filed for determination of mesne profits. The main contention of the petitioner/appellant herein in the petition is that first floor of the schedule premises has been leased to one Kailash Gupta on a monthly rent of Rs.45,000/- and the area of the ground floor and first floor is one and the same and the rent of the first floor premises is enhanced up to Rs.54,450/- per month from 01.01.2009 as per compromise decree in another ejectment suit and the rent of the premises in the said locality is very high as compared to the schedule premises. Therefore, the petitioner has claimed an additional amount of Rs.23,000/- per month towards mesne profits from 01.06.2006 to 31.12.2010 which is just and reasonable.
8. The main contention of the respondents is that the premises was taken by the bank on lease for a period of ten years from 28.12.1999 on the monthly rent of Rs.21,755/- which was later increased up to Rs.27,115/- and before expiry of the said lease period, the petitioner filed eviction suit, though there was an option to extend the lease period for another ten years after expiry of first ten years. The eviction suit was filed prior to the expiry of lease period of ten years and the Court below has taken note of the said fact and reasonably enhanced the amount of Rs.11,000/- per month towards mesne profits.
9. Having considered the contentions of learned counsel for both the parties and also the evidence available on record, the appellant/petitioner in his affidavit by way of affidavit has reiterated the averments made in the petition seeking enhancement of the amount towards mesne profits. Apart from the affidavit, he has also relied upon the documents Exs.P1 to P15 (a) to (f).
10. In the cross-examination of petitioner, who is examined as P.W.1, it is elicited that first floor of the suit property was let out during 2004 and the rent was Rs.45,000/- per month and now, he is getting a rent of Rs.54,000/- to the first floor. He has also produced the rent receipts. He further admits that there is no registered lease deed regarding letting out of first floor. He also admits that during 2008, he has let out a portion of the ground floor to M/s.Sangeetha Mobile Showroom for a rent of Rs.25,000/- per month and there is a lease deed for having let out the same. A suggestion was made that there was decrease in rent rates due to recession and there were plenty of premises available and the same was denied. It is suggested that, presently in the vicinity of the suit premises, the rent will be Rs.30,000/- for such an area and he is claiming more and the same was denied. It is elicited that the tenant of the first floor is running restaurant till 11.00 p.m.
11. The respondent No.3, who has been examined as R.W.1 in his evidence reiterates the grounds urged in the objection statement filed in the petition and got marked the document Ex.R1. In the cross-examination of R.W.1, it is elicited that he has made an enquiry with Corporation Bank towards the rent and further admits that most of the premises in the vicinity of the bank are rented out. He further admits that he has got the information that the Corporation Bank is the tenant of the premises of the same year when they occupied the schedule premises. He also enquired through his customers about the vacant premises and the prevailing rate of rent in the year 2009. But he claims that he came to know that vacant premises are available at Rs.10/- to 12/- per Sq. Ft. on rental basis. It is elicited that the rent paid is the least among the offers they received. It is also elicited that first floor of their branch bank is restaurant and he does not know about the compromise entered into between the petitioner and the tenant and he agreed to pay the enhanced rent of Rs.49,500/- per month. He admits that the branch bank did not vacate the premises after the receipt of notice by the petitioner. Further admits that this Court permitted the respondents to occupy the premises till 31.12.2010. However, it is elicited that Bannerghatta area is not prominent for both commercial and residential purpose. The prominence of Bannerghatta area is presently less due to traffic density. It is also elicited that Bannerghatta Road have both commercial and residential complexes. A suggestion was made that the rent fetched by the petitioner for the schedule premises from the tenant is Rs.2,45,000/- per month and the same was denied. It is elicited that he does not know about the petitioner having let out the portion of the premises for Rs.125/-. But he claims that the rate which is fixed of the present premises of the bank is at Rs.43/- per Sq. Ft. for ground floor and Rs.30/- per Sq. Ft. for basement and the basement area is for banking transaction and not for parking.
12. The Court below while considering the claim of the petitioner and also the respondents in Para 11 of the order distinguished the premises which is in occupation of the respondents and also the premises which was let out to other tenant, who is running the restaurant. The Court below has also made an observation that the rent amount of the premises let out for running the restaurant cannot be equated with rent amount of the premises leased to run the banking premises. It is also observed that lease period of the bank was for a period of ten years and before expiry of the said period, ejection suit was filed. Admittedly, there is no dispute with regard to the fact that the lease was for a period of ten years and before expiry of the period of ten years, the ejection suit was filed and the same was decreed. Thereafter, Regular First Appeal was filed before this Court and the same also came to be dismissed. However, right was reserved to the petitioner to seek for the relief of mesne profits.
13. On perusal of the order impugned, the Court below, while fixing the amount at Rs.11,000/- per month has only made the guess work and has not assigned any reason as to on what basis an amount of Rs.11,000/- per month was taken. Admittedly, when the premises was let out to the respondents in the year 1999, the rent paid was at Rs.21,755/- per month and subsequently, the same was enhanced to Rs.27,115/- enhancing Rs.1,000/- every year. It is pertinent to note that, in the cross-examination of R.W.1, he did not dispute the fact that rate of rent was enhanced in respect of the first floor of the premises but only in the Court, he states that he does not know about the enhancement. The respondent-Bank also did not dispute the fact that in the ejection suit, the rent was enhanced. Admittedly, the premises which is let out to the bank is a commercial premises and the area in which it is situate is a highly commercial area and the same is elicited in the cross-examination of R.W.1. The enhancement of rent also would be in terms of the lease agreement entered into between the petitioner and the respondents. Having taken note of the guess work made by the Court below, enhancing an amount of Rs.11,000/- per month and also considering the answers elicited from the mouth of R.W.1 that in the Bannerghatta Road area both commercial and residential complexes are located, it is appropriate to enhance the amount little higher instead of Rs.11,000/- per month. The Court below ought to have taken note of the enhancement made to the other tenants as well. No doubt, a suggestion was made that now the rent fetched by the petitioner of the schedule premises from the tenant was Rs.2,45,000/- per month, the said suggestion has remained as a suggestion and nothing is elicited and documentary evidence is also placed before the Court to substantiate the fact that the petitioner is fetching more rent. Hence, instead of Rs.23,000/- per month as claimed by the appellant, it is appropriate to enhance the same to Rs.15,000/- per month as against Rs.11,000/- enhanced by the Court below since, the premises is located in a highly commercial area. Therefore, it requires modification of the order of the Court below enhancing the same to Rs.15,000/- per month as against Rs.11,000/- per month. Since, the rent of the other portion of the building has also been enhanced periodically and in the other suit also, the rent was enhanced. With regard to extent of claim of Rs.23,000/-, no document is produced.
In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The amount towards mesne profit is enhanced to Rs.15,000/- per month as against Rs.11,000/- per month granted by the Court below for the period from 01.06.2006 to 31.12.2010.
(iii) The office is directed to draw the decree in terms of the modification and send the lower court records to Court the below, forthwith.
Sd/- JUDGE ST