IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.936 OF 2017 BETWEEN M/s. Vodafone Essars South Ltd., Represented by the Deputy General Manager And head administration Maruthi Infotech Centre, Koramangala, Bengaluru-560071.
By its authorized signatory, Sri. Prashanth N (By Sri B.J.Mahesh, Advocate) AND Sri. Veerabhadraiah, S/o. Late Nanjundappa, Aged about 67 years, R/at No.608, Banagirinagar, Banshankari 3rd Stage, DG Petrol Bunk Road, Bengaluru-85.
(By Sri R.B.Sadasivappa, Advocate) …Appellant …Respondent This RFA is filed under Order XLI Rule 1 read with Section 96 of CPC, against the judgment and decree dated 22.02.2017 passed in O.S.No.5515/2015 on the file of the LXVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH 69), partly decreeing the suit for ejectment. The appellant prays to set aside the aforesaid judgment and decree in so far as the finding and direction that, the appellant/defendant is bound to pay arrears of rent at Rs.6,64,279/- to the plaintiff/respondent and also the mesne profits while answering issue Nos. 3, 4 and 5.
This RFA coming on for hearing this day, the court delivered the following:
JUDGMENT The respondent in this appeal instituted the suit O.S.5515/2015 in the City Civil Court, Bengaluru, for evicting the appellant from a premises bearing no.608, Banagiri Nagar, Banashankari III Stage, D.G.Petrol Bunk Road, Bengaluru-85 (‘schedule premises’). He also claimed an amount of Rs.16,85,244/- towards arrears of rent, damages and power consumption charges with interest @ 24% p.a. By judgment dated 22.2.2017 the learned trial judge decreed the suit and ordered for eviction of the appellant besides directing him to pay arrears of rent and electricity charges of Rs.64,279/-. Aggrieved by this judgment, the defendant has preferred this appeal. In a nutshell the pleadings are as follows:-
2. The plaintiff is the absolute owner of the schedule premises. On 31.1.2005 a company called M/s Hutchison Essar South Limited became a tenant of the plaintiff in respect of the schedule premises on a monthly rent of Rs.40,000/-. The tenant also paid a sum of Rs.6,00,000/- to the plaintiff as security deposit. The agreement contained a stipulation with regard to enhancement of rent at the rate of 15% over the last paid rent once in three years. In the year 2007, a new name called M/s Vodafone Essar South Limited was given to M/s Hutchison Essar South Limited. This Vodafone Essar South Limited is the defendant and it continued to be in occupation of the schedule premises. In the month of November 2013, when the lease period was coming to an end, an official of the defendant company namely Sri Venkatesh @ Venkatesh Babu approached the plaintiff and expressed an intention that the company would like to continue in the schedule premises with enhanced rent and told that the defendant would continue to pay the rent of Rs.52,900/- per month till a new rate was mutually agreed upon. According to the lease agreement dated 31.1.2005, the period of lease was for nine years. It is stated by the plaintiff that after expiry of nine years period, the defendant was liable to pay rent at the rate of Rs.90/- per sq.ft per month. The defendant became a defaulter in paying the rent and therefore the plaintiff caused a legal notice issued to the defendant terminating the tenancy. Since the defendant failed to vacate the schedule premises, the plaintiff brought a suit for evicting the defendant and recovering Rs.16,85,244/- being the arrears of rent and such other charges.
3. The defendant admitted that it occupied the schedule premises as a tenant, but denied that it had an intention to continue in the schedule premises after expiry of nine years. When the plaintiff demanded exorbitant increase in rent, it expressed its intention to terminate the tenancy, therefore in the second week of July 2014 it sent a letter to the plaintiff personally through one of its executives, namely Smt. Shilpa. The plaintiff received the letter, but it did not give acknowledgement for having received it. In the said letter it was made clear that the defendant terminated the tenancy with effect from October 2014. Defendant contended that it vacated the schedule premises during August 2014 itself and informed the plaintiff also. The defendant requested the plaintiff to return the security deposit by deducting an mount of Rs.1,58,700/- being the rent for the months of August, September and October 2014. The plaintiff did not refund the security deposit in spite of repeated demands. The defendant never defaulted in paying the rent and it enhanced the rent once in three years as per the terms of the lease agreement and Rs.52,900/- was the rent that was being paid at the time of termination of tenancy by it. Defendant has stated that the plaintiff has suppressed all these facts and has claimed an amount of Rs.16,85,244/- without any basis.
4. The trial court after appreciating the evidence, both oral and documentary, decided the suit as aforementioned.
5. I have heard the arguments of learned counsel for the appellant and the respondent, and perused the records. The appellant has not questioned the order of eviction passed against it. It is not in dispute that the appellant vacated the schedule premises on 27.4.2017, i.e., during the pendency of the execution proceeding. The whole controversy revolves around the arrears of rent and other charges payable by the appellant. It is argued by the appellant’s counsel that the appellant terminated the tenancy by issuing a notice/letter dated 15.7.2014 marked Ex.D2 in the suit. The said letter was received by the respondent/plaintiff and did not acknowledge the receipt of the same. The learned counsel argued that the tenancy came to an end and the appellant was not required to pay rent thereafter. He also further argued that the lease agreement between the parties provided for three months advance notice and therefore after expiry of three months from 15.7.2014, the appellant was no longer a tenant. He was supposed to pay rent only for the period of August, September and October 2014. Rs.52,900/ was the last paid rent when tenancy was terminated. The trial court has held that there is no proof for service of notice as per Ex.D2 on the respondent. This is a wrong finding because PW1, in his cross-examination does not deny to have received the notice but only says that he does not know about it. This is an evasive answer. Then he referred to another answer of DW1 that joint inspection was not held and submitted that this answer was given in the context of service of notice Ex.D2 on the respondent. The only possible inference that could be drawn is that he did receive the notice. Moreover when the appellant replied to the respondent’s notice as per Exhbit-P6, the appellant made a mention of notice issued by it to the respondent as per Ex.D2. If the respondent had not received the notice, he could have brought to the appellant’s notice that he did not receive any such notice. Therefore, inference could be drawn that the appellant terminated tenancy by writing a letter as per Ex.D2. Admittedly, the respondent has Rs.6,00,000/- with him towards security deposit. If the rent for three months is deducted from Rs.6,00,000/-, the respondent should repay to the appellant a sum of Rs.4,41,300/-.
6. The learned counsel for the respondent argued that the trial court has come to a right conclusion that notice as per Ex.D2 was not communicated to the respondent. According to the appellant, the said notice was personally served on the respondent by its Stores Executive Ms. Roopa. She was the best witness to speak about service of notice. She was not examined. There is no scope for drawing an inference with regard to service of notice when the best witness was withheld.
7. The trial court has clearly held that the burden of proving the service of notice on the respondent was on the appellant and the same has not been discharged. If the evidence in this regard is analyzed, it has to be stated that the appellant which has taken up a plea very specifically that it terminated the tenancy by issuing a notice, has failed to discharge its burden. It is true that respondent who adduced evidence as PW1 has not given a specific answer about service of notice Ex.D2 on him. Likewise he has also stated about joint inspection. Merely based on these answers, it is not possible to draw an inference about service of notice on the respondent. Not only in the written statement but also in the evidence of DW1, it is very much forthcoming that the stores manager Ms.Shilpa took the notice for service on the respondent and that she was very much working in the appellant company when DW1 adduced evidence. She could have been examined. When the best witness was not examined, it is impossible to hold that notice as per Ex.D2 was served on the respondent. And it is also not possible to hold that because in Ex,P6, the reply given by the appellant to the respondent’s notice, there is mention about Ex.D2, the respondent was aware of termination of tenancy by the appellant. I do not find any infirmity in the findings given by the trial court in this regard.
8. Then the question arises with regard to actual arrears of rent payable by the appellant. The lease commenced on 31.3.2005 and as per the lease agreement the period of lease was 9 years which expired on 31st day of January 2014. According to the respondent, the appellant wanted to continue the lease and in this regard the appellant’s executive Venkatesh met him and conveyed appellant’s intention to continue in the schedule premises on a rent to be fixed at a new rate. The respondent has stated in the plaint that the appellant was to pay rent @ Rs.90/- per sq.ft per month, commencing from 1st day of February 2014 and has calculated the arrears of rent at this rate. The trial court has given a finding that the respondent has not been able to prove that the appellant agreed to pay the rent @ Rs.90/- per sq. ft. per month. This conclusion drawn by the trial court is found to be correct. The learned counsel for the appellant argued that the very reason for terminating the tenancy by issuing a notice as per Ex.D2 was that the appellant demanded exorbitant hike in the rent. If according to the respondent, the appellant agreed for enhancement, there should have been a mutual agreement between the two. Rather what is found is imposition of higher rate of rent by the respondent on the appellant and therefore as has been held by the trial court, the respondent has failed to prove enhanced rate of rent from 1.2.2014 onwards.
9. The learned counsel for the respondent argued that the trial court has rightly come to the conclusion that the appellant is still due in a sum of Rs. 64,279/- after deducting the rent and other charges payable by the appellant. He argued that even assuming for argument sake that the appellant did terminate the tenancy by issuing notice as per Ex.D2 and expressed his intention to vacate the schedule premises, actually he did not vacate and that he handed over the vacant possession to the respondent after initiation of execution proceedings. He could have deposited the keys in the trial court when he put in appearance after receiving suit summons. This was not done. Therefore, the appellant’s stand that no rent is payable after October 2014 is not acceptable. The appellant’s counsel refuted this contention and argues that the appellant did not vacate the schedule premises in the month of August 2014 because the respondent did not repay the security deposit.
10. In this regard it is to be stated that merely because the appellant issued a notice as per Ex.D2 expressing his desire to vacate, it cannot be said that the appellant actually vacated the schedule premises. Wanting or desiring to vacate the schedule premises is entirely different from showing it in action by vacating. Therefore, there is no evidence even to hold that the appellant vacated the schedule premises in the month of October 2014 or thereafter. For this reason till expiry of nine years period the appellant was under an obligation to pay the rent @ Rs.52,900/- per month. The trial court has held that after expiry of nine years period, the appellant was to pay the rent with 15% hike on the last paid rent of Rs.52,900/-. 15% of Rs.52,900/- is Rs.7,935/- and adding this figure to Rs.52,900/-, the trial court has held that 60,835/- was the rent payable by the appellant from March 2014. Taking into account the difference in the amount the defendant had to pay towards rent and the electricity charges from March 2015 till 20.1.2016, the trial court held that Rs.6,64,279/- was the total amount due by the appellant to the respondent. Needless to say that the trial court rejected the respondent’s claim for enhancement in rent @ Rs.90/- per sq.ft. per month. Deducting Rs.6,00,000/- from total amount of Rs.6,64,279/-, trial court has come to conclusion that Rs.64,279/- is payable by the appellant to the respondent. The calculation thus made by the trial court and the reasons assigned in this regard for arriving at this figure are cogent and they do not require any interference in this appeal. Therefore, it is to be concluded that this appeal fails and ordered accordingly. There is no order as to costs Sd/- JUDGE ckl