Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 151 (KAR)

Jayachamundeshwari v. Himatmal S. Jain

2020-01-17

NATARAJ RANGASWAMY

body2020
JUDGMENT 1. This regular first appeal is filed by the defendant in the suit challenging the judgment and decree dated 15.7.2014 passed by the XIX Additional City Civil and Sessions Judge, Bengaluru City in O.S.No.5057/2013. 2. The plaintiff filed O.S.No.5057/2013 to recover a sum of Rs.1,01,875/-, with future interest at the rate of 12% per annum on the principal sum of Rs.75,000/- from the date of suit till realization. 3. The plaint averments disclose that the defendant being the owner of the residential property had rented out the same to the plaintiff which was evidenced by an agreement of lease dated 10.07.2007, whereunder, the plaintiff paid a sum of Rs.30,000/- by a cheque bearing No.696087 dated 10.07.2007 and a sum of Rs.40,000/- by a cheque bearing No.696088 dated 10.07.2007 and also paid a sum of Rs.5,000/- in cash towards the interest free refundable lease amount. The lease was to be for a term of 3 years and on expiry of the term, the defendant had undertaken to refund the amount without interest. It is stated that after the expiry of the lease term, the plaintiff delivered possession of the premises to the defendant and demanded the refund of a sum of Rs.75,000/-. The defendant took over possession of the property, but failed to refund the amount of Rs.75,000/-. The plaintiff therefore filed the present suit to recover Rs.75,000/- along with interest at the rate of 12% per annum from 16.07.2007 till the date of filing of the suit, totaling to a sum of Rs.1,01,875/-. 4. The defendant filed his written statement contending that the suit was barred by limitation. The defendant admitted that the plaintiff was a tenant and the period of lease is for 3 years commencing from 15.07.2007. However, she contended that the lease was terminated prior to expiry of three years. It is also admitted that the plaintiff delivered vacant possession of the premises to the defendant. The defendant further claimed that the plaintiff had sub-let the premises to unlawful elements which prompted the defendant to approach the police to abort the nuisance created by the occupant of the premises and that thereafter, the plaintiff vacated the premises after collecting the deposit amount. The defendant claimed that she was not liable to refund any amount. Based on the rival contentions the Trial Court framed the following issues. Issues:- '1. The defendant claimed that she was not liable to refund any amount. Based on the rival contentions the Trial Court framed the following issues. Issues:- '1. Whether the plaintiff proves that he had paid security deposit amount of Rs.75,000/- to the defendant and the lease period expires on 16.07.2010 and defendant had not paid the security deposit amount of Rs.75,000/-? 2. Whether the plaintiff further proves that the defendant is liable to pay interest at 12% from 16.07.2007 till the date of filing the suit to the tune of Rs.26,875, totally to the tune of Rs.1,01,875/-? 3. Whether the defendant proves that the suit of the plaintiff is barred by limitation? 4. Whether the plaintiff is entitle for a suit claim amount along with interest due thereon? 5. To what order or decree?' 5. Before the Trial Court, the plaintiff was examined as PW1 and he marked Exs.P1 and P2, while the defendant was examined as DW1. The Trial Court considering the pleadings and the evidence on record, decreed the suit directing the defendant to pay Rs.1,01,875/- along with future interest at the rate of 6% per annum from the date of suit till realization of the principal amount of Rs.75,000/-. 6. The defendant is in appeal before this Court challenging the aforesaid judgment and decree. 7. Heard the appellant and the respondent. Perused the lower court records, evidence both oral and documentary, as well as the judgment and decree of the Trial Court. 8. The following points arise for my consideration. ( i) Whether the defendant having admitted the tenancy and receipt of Rs . 75,000/- as the interest free refundable deposit, has she proved that she repaid the amount after the plaintiff vacated the premises? (ii) Whether the Trial Court was justified in awarding pre-litigation interest at the rate of 12% per annum from the date of the lease, till the date of the suit? ( iii) Whether the judgment and decree of the Trial Court calls for interference? 9. At the outset, the undisputed facts are that; the defendant was the owner of a residential premises lying on the 1st floor of the property bearing No.73/1, 2nd floor, A.G.J.C Nilayam, Police Road, Ranasinghpet, Bengaluru. ( iii) Whether the judgment and decree of the Trial Court calls for interference? 9. At the outset, the undisputed facts are that; the defendant was the owner of a residential premises lying on the 1st floor of the property bearing No.73/1, 2nd floor, A.G.J.C Nilayam, Police Road, Ranasinghpet, Bengaluru. It is also not in dispute that this premises was let out by the defendant to the plaintiff on a consolidated lease amount of Rs.75,000/- for a term of 3 years which was evidenced by a lease agreement dated 10.07.2007. It is claimed that after the term of the lease, the plaintiff handed over the premises to the possession of the defendant on 16.07.2010. The defendant contended that the plaintiff had vacated prior to 16.07.2010 after receiving back the interest free refundable deposit of Rs.75,000/-. A suggestion put to PW1 that he had collected back the security deposit from the defendant was denied. Another suggestion put to PW1 that Ex.P2 was created by the plaintiff was also denied. 10. It is seen that though the defendant claimed to have repaid the interest free refundable deposit of Rs.75,000/-, she had not placed any material on record in this regard and she had not proved the payment of Rs.75,000/-. A circumstance which would go against the defendant is the fact that in Ex.P2, the defendant has stated to have received the possession by acknowledging the letter of the plaintiff dated 16.07.2010. The defendant claimed that this letter was fabricated and that the Trial Court could not have relied upon Ex.P2 to return a finding that the defendant had not repaid an amount of Rs.75,000/-. The Trial Court has noticed that the signature of the defendant on Ex.P2 is corresponding to the signature found on the written statement and the vakalath. 11. Be that as it may, once the defendant has acknowledged the receipt of possession of the premises from the plaintiff, it was incumbent upon the defendant to prove the payment of a sum of Rs.75,000/-. 12. In view of the above discussion, the Trial Court was perfectly justified in decreeing the suit for refund of a sum of Rs.75,000/-. 13. Insofar as the second point for consideration is concerned, the lease was admittedly with effect from 10.07.2007 and the effective date of lease was 15.07.2007 and came to an end on 16.07.2010. 12. In view of the above discussion, the Trial Court was perfectly justified in decreeing the suit for refund of a sum of Rs.75,000/-. 13. Insofar as the second point for consideration is concerned, the lease was admittedly with effect from 10.07.2007 and the effective date of lease was 15.07.2007 and came to an end on 16.07.2010. The plaintiff could not have claimed interest at the rate of 12% per annum from 16.07.2010, since there is no agreement to pay interest between the parties. Since the plaintiff has filed the suit just three days prior to the last date within which the suit had to be filed, it is not equitable to grant interest for the period prior to the filing of the suit. In view of Section 34 of the Code of Civil Procedure, the plaintiff may at the most be entitled to interest at the rate of 6% per annum from the date of suit, till realization. Thus, the impugned judgment and decree of the Trial Court is liable to be modified only to the extent of setting aside the pre-litigation interest awarded by the Trial Court at the rate of 12% per annum from 16.07.2010, till the date of the suit. Hence, the following: ORDER The impugned judgment and decree of the Trial Court is modified and it is ordered that the plaintiff is entitled to recover a sum of Rs.75,000/- from the defendant along with interest at the rate of 6% per annum from the date of suit, till realization. No order as to costs.