Partly allowed

B Devaraju v. Smt Pushpamma

Karnataka HC16 Jul 2012RFA/1149/2010

Case brief

AI extract

What is this about?

In this regular first appeal regarding recovery of a security deposit, the High Court upheld the lower Court's decree rejecting the appellant's claim that the money was returned to the plaintiff's deceased husband. However, the Court reduced the awarded interest from 12% to 9% per annum as the higher rate was exorbitant.

What did the court decide?

Decree of lower Court upheld; reduced interest from 12% to 9% per annum; no order as to costs.

B Devaraju Vs Smt Pushpamma — Contract and Commercial Disputes | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 16TH DAY OF JULY 2012

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BEFORE

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THE HON’BLE MR. JUSTICE A S BOPANNA

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REGULAR FIRST APPEAL NO.1149/2010

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BETWEEN:

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B. DEVARAJU, S/O. LATE BETTAIAH, AGED ABOUT 47 YEARS, NO. 38/6, 8TH CROSS, NEAR MUNESHWARA TEMPLE, GORAGUNTEPALYA, BANGALORE - 22

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…APPELLANT

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(BY SRI P.N. HEGDE, ADV.)

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AND:

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SMT PUSHPAMMA, W/O. LATE A. CHANDRAPPA, AGED ABOUT 50 YEARS, NO. 528, PIPELINE ‘A’ CROSS, YASHAWANTHAPURA, BANGALORE - 22

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... RESPONDENT

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THIS RFA IS FILED UNDER SECTION 96, READ WITH O-XLI OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.04.2010 PASSED IN O.S.NO.7685/2006 ON THE FILE

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OF THE II-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE DECREEING THE SUIT FOR RECOVERY OF MONEY.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING :

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JUDGMENT

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The appellant herein is the defendant in O.S. No. 7685/2006. The suit in question was filed by the plaintiff seeking recovery of the amount which is said to have been kept with the defendant as security deposit in respect of the premises which had been leased out. The trial Court after considering the rival contentions has decreed the suit. The defendant is therefore before this Court.

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The learned counsel for the appellant while assailing the judgment of the Court below would contend that the Court below was not justified in decreeing the suit. It is his case that the Court below has not taken note of the fact that when the premises was leased out, the husband of the plaintiff was alive and the amount had been repaid to the husband of the plaintiff when the husband vacated the premises. According to the learned counsel, this is an important aspect inasmuch

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as the plaintiff not being aware of this aspect of the matter, has filed the suit which is without any basis. It is his contention that merely because the plaintiff was still holding the documents, that in itself does not establish that the amount was due to be paid since in any event, the tenant while vacating would not vacate without receiving the advance and therefore, the Court below was not justified and the judgment is to be set aside.

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The learned counsel for the respondent who has entered

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caveat would however seek to justify the judgment passed by the Court below.

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Having heard the learned counsel, I have perused the judgment passed by the Court below.

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The trial Court on taking note of the rival contentions had framed three issues for its consideration. The burden had been cast on the defendant to prove that the security deposit had been returned to

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the husband of the plaintiff since the contention of discharge had been taken in the written statement. In that light, the trial Court has referred to the evidence tendered by the plaintiff as PW-1 and her the witness as PW-2 and has also taken note of the documents marked as Exhs.P1 to P5. The defendant tendered his evidence as DW-1 and document at Ex. D1 was also looked into by the Court below.

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While analysing the evidence which was available before

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it, the Court has rightly taken note of the legal position. In that regard, when the defendant had admitted the transaction and had claimed discharge of the amount as having already been paid to the husband of the plaintiff, it is for the defendant to prove that aspect of the matter. When there was no satisfactory evidence and on the other hand when the plaintiff had relied on the document namely the lease deed under which the advance amount has been paid, the trial Court was justified in holding that the very possession of the document would indicate that the defendant has not refunded the amount. In a normal course, if the defendant were to refund the amount to the

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husband of the plaintiff, naturally he would have received back the documents or insisted on destroying the same. In the instant case, the same has not been done. Hence, the trial Court was justified in decreeing the suit.

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Having arrived at the above conclusion, one other

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contention urged by the learned counsel for the appellant as to whether the Court below was justified in granting interest at 12% also requires to be noticed. In this regard, it is seen that the Court below has not expressly considered this aspect of the matter except to state that since the amount had been retained by the defendant, the same is to be repaid with 12% interest. In this regard, there is no contractual rate of interest agreed between the parties. Normally advance amount would be refunded without interest. However, in the instant case the amount was retained though the lessee vacated. To the extent of the loss caused at best the bank rate could have been granted. Therefore, keeping these aspects in view, I am of the opinion that the interest granted at 12% is exorbitant and the same would have to be reduced.

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Accordingly, the plaintiff would be entitled to recover the decreetal amount with interest at 9% per annum.

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With the above modification to the judgment and decree, the appeal is disposed of. No order as to costs.

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In view of the disposal of the appeal, Misc. Cvl. No. 9502/2010 is also disposed of

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Sd/JUDGE

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B Devaraju v. Smt Pushpamma

Case brief

What is this about?

What did the court decide?

B Devaraju v. Smt Pushpamma

Case brief

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What did the court decide?

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