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Andhra High Court · body

2014 DIGILAW 1150 (AP)

M. Vijaya Lakshmi v. Kalanikethan Textilesand Jewells Private Limited

2014-09-12

C.V.NAGARJUNA REDDY

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ORDER C.V. Nagarjuna Reddy, J. 1. This Civil Revision Petition arises out of Order, dated 18.03.2014, in I.A. No. 936 of 2013 in O.S. No. 1247 of 2013, on the file of the Court of the learned III Additional District and Sessions Judge, Ranga Reddy District (for short 'the lower Court'). 2. The petitioners filed the above-mentioned suit for eviction of the respondents from the suit schedule property and for recovery of a sum of Rs. 90 lakhs and for future mesne profits @ Rs. 30 lakhs per month from the date of filing the suit. Pending the suit, the petitioners filed I.A. No. 936 of 2013, under Order XV-A of the Code of Civil Procedure, 1908 (CPC), for a direction to respondent No. 1 to deposit the arrears of rent of Rs. 90 lakhs and a monthly rent of Rs. 15 lakhs to the credit of the suit in the lower Court. 3. In short, the plea of the petitioners is that they are the joint owners of the suit schedule property and that they have let out the same to respondent No. 1 on a monthly rent of Rs. 7.5 lakhs under registered lease deed, dated 26-04-2012; that under unregistered agreement, dated 27-04-2012, respondent No. 1 has agreed to pay another sum of Rs. 7.5 lakhs towards "hire and user charges for fixtures and fittings"; that respondent No. 1 has paid the accrued amount of Rs. 15 lakhs from November, 2011 to March, 2013 and that it has sublet a part of the suit schedule premises leased out to it to respondent Nos. 2 and 3. It was further pleaded that from April, 2013 onwards, respondent No. 1 has committed default in payment of the sum of Rs. 7.5 lakhs as agreed under unregistered agreement, dated 27-04-2012, while collecting rents from its sub-tenants and that through the lawyer's notice, dated 02-09-2013, the petitioners terminated tenancy and demanded delivery of vacant possession. As this demand was not met by respondent No. 1, the petitioners filed O.S. No. 1217 of 2013 for eviction. In the suit, the petitioners have filed the above-mentioned IA under Order XV-A CPC for a direction to respondent No. 1 to deposit the withheld amounts in the Court. 4. As this demand was not met by respondent No. 1, the petitioners filed O.S. No. 1217 of 2013 for eviction. In the suit, the petitioners have filed the above-mentioned IA under Order XV-A CPC for a direction to respondent No. 1 to deposit the withheld amounts in the Court. 4. On behalf of respondent No. 1, its Managing Director filed a counter-affidavit wherein, while admitting the execution of lease deed, dated 26-04-2012, he has denied the execution of unregistered agreement, dated 27-04-2012. He has further averred that the petitioners approached respondent No. 1 for payment of additional security deposit of Rs. 1.2 Crore refundable at the time of vacation of the suit schedule premises or termination of lease deed along with the security deposit made under registered lease deed, dated 26-04-2012, and that since respondent No. 1 was not in a position to arrange such huge payment in one lumpsum, it has agreed to pay the same in monthly installments @ Rs. 7.5 lakhs in addition to the monthly rent of Rs. 7.5 lakhs; and that accordingly, respondent No. 1 has paid the sum of Rs. 15 lakhs till June, 2013. 5. Having regard to the respective pleadings of the parties and the submissions made by their Counsel, the lower Court has dismissed the application filed by the petitioners. 6. I have heard Mr. M.V.S. Suresh Kumar, learned Counsel for the petitioners, and Mr. V.L.N.G.K. Murthy, learned Counsel appearing for Mr. Chereddy Srinivasa Reddy, learned Counsel for respondent No. 1, at length. 7. The learned Counsel for the petitioners submitted that from the conduct of respondent No. 1, it is clearly evident that its denial of liability to pay the sum of Rs. 7.5 lakhs towards hire and user charges for fixtures and fittings is absolutely unjustified and unsustainable. He has relied upon "Forms 26 AS" submitted by respondent No. 1 before the Income Tax Authorities showing the amount payable to the petitioners as Rs. 15 lakhs and deducting TDS therefrom. The learned Counsel submitted that from this conduct of respondent No. 1, it is reasonable to conclude that respondent No. 1 has agreed to pay Rs. 15 lakhs comprising Rs. 7.5 lakhs towards rent and another sum of Rs. 7.5 lakhs towards hire and user charges for fixtures and fittings provided in the demised premises. 8. The learned Counsel submitted that from this conduct of respondent No. 1, it is reasonable to conclude that respondent No. 1 has agreed to pay Rs. 15 lakhs comprising Rs. 7.5 lakhs towards rent and another sum of Rs. 7.5 lakhs towards hire and user charges for fixtures and fittings provided in the demised premises. 8. The learned Counsel for respondent No. 1 has placed heavy reliance on a sentence in Paragraph 3 of the plaint, which reads thus: "It is pertinent to state that such composite rent of Rs. 15 lakhs (Rs. 15 lakhs only) is indivisible." 9. The learned Counsel submitted that in the face of the above-reproduced pleading, the alleged unregistered agreement, dated 27-04-2012, which purports to vary the terms of registered agreement, dated 26-04-2012, is not admissible in evidence in view of the provisions of Section 91of the Indian Evidence Act, 1872. He has further submitted that the recital relating to the rent of Rs. 7.5 lakhs mentioned in the registered lease deed, dated 26-04-2012, constitutes a term of the said document and that therefore, no extrinsic evidence to displace the said term is admissible in evidence under the aforesaid provision. 10. Before discussing the issue further, the relevant findings rendered by the lower Court need to be recorded. In Para 10 of its order, the lower Court has observed as under: "The petitioners claim that the copy of the TDS is to be taken into consideration, which is a public document, and the respondent cannot deny the payment of said amount and TDS Form 26 AS filed by the petitioners cannot be denied. If the said document is taken into consideration which clearly establishes that the rent is Rs. 15 lakhs but not Rs. 7.5 lakhs. It is unfortunate to note that respondent No. 1 has taken different plea that subsequently, the petitioners approached him to arrange an amount of Rs. 1,20,00,000/- to develop their properties and as respondent No. 1 is not in position to arrange such huge amount, he agreed to arrange the amount in installments and in that way, he has paid Rs. 7.5 lakhs to the petitioner every month along with the rent " (Emphasis added) 11. 1,20,00,000/- to develop their properties and as respondent No. 1 is not in position to arrange such huge amount, he agreed to arrange the amount in installments and in that way, he has paid Rs. 7.5 lakhs to the petitioner every month along with the rent " (Emphasis added) 11. In effect, the lower Court, while prima facie observing that respondent No. 1 has raised conflicting pleas regarding the rent and other charges payable to the petitioners, did not proceed further to decide as to whether the agreed rent and other charges aggregated to Rs. 15 lakhs or not. In ordinary course, this Court would have remanded the case to the lower Court for deciding this issue because even where there is a dispute with regard to the quantum of rent and other charges payable by respondent No. 1, the Court can still hold a summary enquiry and adjudicate such dispute while deciding an application under Order XV-A CPC (See Sri Vasavi Boys Hostel and Mess vs. K. Satya Prasad rep. by his GPA Holder 2013 (1) ALT 401 ). But, having regard to the submissions of the learned Counsel that remand of the application to the lower Court will further delay the suit, I have decided to proceed with the adjudication of the dispute. 12. The contentious issue between the parties is, whether respondent No. 1 agreed to pay Rs. 15 lakhs towards rent as well as hire and user charges for fixtures and fittings. Respondent No. 1 has, no doubt, disputed unregistered agreement, dated 27-04-2012. Indeed, respondent No. 1 has come out with the plea that in addition to Rs. 7.5 lakhs, which was the agreed monthly rent, it has agreed to pay additional security deposit of Rs. 1.20 Crore in installments @ Rs. 7 lakhs per month. It is not the pleaded case of respondent No. 1 that a separate agreement for payment of such deposit amount was executed between the parties or that it has not deducted TDS from the entire sum of Rs. 15 lakhs and issued Forms 26 AS. It is also not the pleaded case of respondent No. 1 that since the sum of Rs. 1.20 Crore, which it has allegedly agreed to pay towards the purported additional deposit, is also liable to income tax and that therefore, the said amount was also subjected to Tax Deduction at Source (TDS). 15 lakhs and issued Forms 26 AS. It is also not the pleaded case of respondent No. 1 that since the sum of Rs. 1.20 Crore, which it has allegedly agreed to pay towards the purported additional deposit, is also liable to income tax and that therefore, the said amount was also subjected to Tax Deduction at Source (TDS). The only plea raised by learned Counsel for respondent No. 1 in this regard is that in the face of the pleadings of the petitioners that the parties have agreed that the entire sum of Rs. 15 lakhs must be paid as composite rent and that the same is indivisible, the alleged agreement, dated 27-04-2012, being unregistered document, could not alter the rent of Rs. 7.5 lakhs under registered agreement, dated 26-04-2012, and such a document shall not be looked into even for the purpose of adjudication of the application under Order XV-A CPC. The extension to this submission is that even Forms 26 AS, admittedly, submitted by respondent No. 1 before the Income Tax Department shall not be looked into. 13. Let me now consider what is the true purport of the pleading of the petitioners in the suit. Para 3 of the plaint reads as under: "Plaintiffs and defendant No. 1 entered into a fresh lease deed dated 26-04-2012 with regard to lease of the demised property. It is specifically agreed that the lease stood recommenced with effect from 1st November, 2011, on the terms and conditions mentioned therein. The Defendant No. 1 agreed to pay a sum of Rs. 7.5 lakhs (Rupees seven lakhs fifty thousand only) every month towards rent and a further sum of Rs. 7.5 lakhs towards charges for fixtures and fittings, amenities thus in all Rs. 15,00,000/- (Rupees fifteen lakhs only) to the plaintiffs. In fact, the same is evident from the Agreement, dated 27-04-2012, executed by defendant No. 1 in favour of plaintiffs with regard to payment of charges towards fixtures and fittings etc. It is pertinent to state that such composite rent of Rs. 15,00,000/- (Rupees fifteen lakhs only) is indivisible." (Emphasis added) 14. If we consider the sentence - "It is pertinent to state that such composite rent of Rs. It is pertinent to state that such composite rent of Rs. 15,00,000/- (Rupees fifteen lakhs only) is indivisible." (Emphasis added) 14. If we consider the sentence - "It is pertinent to state that such composite rent of Rs. 15 lakhs is indivisible" in isolation, the contention of learned Counsel for respondent No. 1 is acceptable, but the law is well settled that the pleadings cannot be construed as a statute. If Para 3 of the plaint is read in its entirety, the said sentence pales into insignificance because if the entire sum of Rs. 15 lakhs is to be treated as composite rent, the previous averments will lose their significance. In the earlier part of Para 3, the petitioners have specifically pleaded that respondent No. 1 agreed to pay a sum of Rs. 7.5 lakhs towards monthly rent and a further sum of Rs. 7.5 lakhs towards hire and user charges for fixtures, fittings and amenities provided in the suit schedule premises. This pleading is in consonance with the recitals in agreement, dated 27.04.2012, which clearly refer to the two different sums of Rs. 7.5 lakhs towards monthly rent and Rs. 7.5 lakhs towards hire and usage charges for fixtures and fittings. Clauses 1 and 2 of this agreement read as under: "1 That lease (sic 'lessee') besides the usual monthly rent of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) hereby agrees to pay Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) towards hire and use charges of fixtures and fittings provided in the premises house No. 17-108, Kamala Nagar, Dilsukh Nagar, in Survey No. 63, 72, 91, 92, 93 and 94 of Gaddiannaram Ranga Reddy District, on or before 15th day of every month along with the rent. 2. It is hereby agreed that the lessee pay(s) the rents for premises including fixtures and fittings to the lessors as follows: i. A sum of Rs. 9,00,000/- (Rupees Nine Lakhs only) shall be paid to lessor No. 1 i.e., Smt. M. Vijaya Lakshmi; ii. A sum of Rs. 59,242/- (Rupees Fifty Nine Thousand Two Hundred Forty Two only) shall be paid to lessor No. 2 i.e. Sri K. Ravinder Naik; iii. A sum of Rs. 59,242/- (Rupees Fifty Nine Thousand Two Hundred Forty Two Only) shall be paid to lessor No. 3 i.e., Smt. K. Himabindu Naik; iv. A sum of Rs. A sum of Rs. 59,242/- (Rupees Fifty Nine Thousand Two Hundred Forty Two only) shall be paid to lessor No. 2 i.e. Sri K. Ravinder Naik; iii. A sum of Rs. 59,242/- (Rupees Fifty Nine Thousand Two Hundred Forty Two Only) shall be paid to lessor No. 3 i.e., Smt. K. Himabindu Naik; iv. A sum of Rs. 71,090/- (Rupees Seventy One Thousand Ninety Only) shall be paid to lessor No. 4 i.e., Sri D. Vidya Prakash; v. A sum of Rs. 1,02,220/- (Rupees One Lakh Two Thousand Two Hundred Twenty only) shall be paid to lessor No. 5 i.e., Sri V. Shyam Sunder Reddy; vi. A sum of Rs. 61,950/- (Rupees Sixty One Thousand Nine Hundred Fifty Only) shall be paid to lessor No. 6 i.e., Smt. V. Lalitha; vii. A sum of Rs. 40,268/- (Rupees Forty Thousand Two Hundred Sixty Eight Only) shall be paid to lessor No. 7 i.e., Sri V. Ravinder Reddy; viii. A sum of Rs. 1,23,902/- (Rupees One Lakh Twenty Three Thousand Nine Hundred Two Only) shall be paid to lessor No. 8 i.e., Smt. V. Jyothi; ix. A sum of Rs. 41,043/- (Rupees Forty One Thousand Forty Three Only) shall be paid to lessor No. 9 i.e., Smt. E. Suvarna; x. A sum of Rs. 41,043/- (Rupees Forty One Thousand Forty Three only) shall be paid to lessor No. 10 i.e., Smt. K. Sandhya." 15. The recitals in Clause 2 reproduced above clearly show that the sums mentioned in sub-clauses (i) to (x) comprise the rents for premises and also fixtures and fittings. Therefore, the said sentence in the plaint cannot be read in isolation without looking into the other pleadings as well as the documents. More importantly, if the parties agreed that the rent payable was only Rs. 7.5 lakhs, there was absolutely no reason why respondent No. 1 has deducted TDS from the entire sum of Rs. 15 lakhs because it is no one's case that even the alleged advance of Rs. 1.20 Crore was liable for tax deduction. More importantly, if the parties agreed that the rent payable was only Rs. 7.5 lakhs, there was absolutely no reason why respondent No. 1 has deducted TDS from the entire sum of Rs. 15 lakhs because it is no one's case that even the alleged advance of Rs. 1.20 Crore was liable for tax deduction. In this view of the matter, this Court is of the prima facie opinion that the alleged unregistered agreement, dated 27-04-2012, was not entered into between the parties with a view to alter the terms of registered agreement, dated 26-04-2012, and that the said agreement along with the TDS certificates, with respect to which there is no dispute, can be looked into for the purpose of holding a summary enquiry as to the quantum of rent and other charges agreed to be paid by respondent No. 1 to the petitioners. The lower Court has failed to examine this aspect and erroneously dismissed the petitioners' application. 16. For the above-mentioned reasons, the order under revision is set aside and I.A. No. 936 of 2013 in O.S. No. 1247 of 2013, on the file of the Court of the learned III Additional District and Sessions Judge, Ranga Reddy District, is allowed. 17. The Civil Revision Petition is, accordingly, allowed. 18. At this Stage, Mr. V.L.N.G.K. Murthy, learned Counsel for respondent No. 1, submitted that since the amount to be deposited by his client comes to around Rs. 1 Crore, he may be permitted to deposit the same in four months from today. This request is accepted and respondent No. 1 is, accordingly, directed to deposit the arrears payable by it in four months from today to the credit of the suit in the lower Court, failing which, its defence shall be struck off. 19. As a sequel, CRPMP. No. 2142 of 2014, filed by the petitioners for interim relief, is disposed of as infructuous.