Dismissed

M/S. Tamarind v. Smt Sarasamma

Karnataka HC4 Aug 2021WP/11767/2021

Case brief

AI extract

What is this about?

High Court dismissed a writ petition filed by tenants challenging a lower court order directing them to pay rent arrears. The Court held that the tenants had unclean hands by attempting to use judicial review to block the landlord from collecting amounts they had already deposited in the trial court.

What did the court decide?

Writ petition dismissed with costs of Rs.10,000/- payable to the plaintiff.

M/S. Tamarind Vs Smt Sarasamma — Landlord and Tenant | Karnataka HC (2021)

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W.P No.11767/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

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WRIT PETITION No.11767 OF 2021 (GM-CPC)

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BETWEEN :

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M/S. TAMARIND A MULTI CUISINE BAR AND RESTURANT A REGISTERED FIRM OF PARTNERS NO.113/2B, HORAMAVU VILLAGE K.R.PURAM HOBLI BENGALURU SOUTH TALUK BENGALURU-43 REPRESENTED BY ITS PARTNER SRI. VIJAY KUMAR RAJU

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SRI. VIJAY KUMAR RAJU S/O SRI. JAYARAMU RAJU PARTNER M/S. TAMARIND NO.405, 8^TH MAIN, 8^TH CROSS BEML LAYOUT TUBARAHALLI BENGALURU-560 066 ... PETITIONERS

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(BY SHRI. D.R. RAVISHANKAR, ADVOCATE)

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AND :

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SMT. SARASAMMA W/O SRI. P. NAGARAJ FLAT NO.204, 2^ND FLOOR RAMAMURTHY NAGAR MAIN ROAD BENGALURU-43

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W.P No.11767/2021

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M/S. KARNATAKA STATE FINANCIAL CORPORATION HAVING ITS HEAD OFFICE NO.1/1, THIMMAIAH ROAD BANGALORE-560 062 REPRESENTED BY ITS MANAGING DIRECTOR

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SRINIVASULU G S/O NARASIMIAH MANAGING PARTNER TAMARIND BAR AND RESTAURANT #747, BANASWADI, 2 B MAIN OMBR LAYOUT BENGALURU-560 043

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SRI. C. NAGABHUSAN S/O SRI. CHINNAPPA REDDY PARTNER TAMARIND BAR AND RESTAURANT NO.6, FIRE WOOD DEPOT 5^TH MAIN, OMBR LAYOUT PILLAREDDY NAGAR BENGALURU-560 043

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SRI. PRAVEEN KUMAR MODGIL S/O SRI. PARAMANANDA MODGIL PARTNER TAMARIND BAR AND RESTAURANT NO.1276, 6^TH CROSS KUNDANAHALLI 'D' BLOCK BENGALURU-560 037

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RESPONDENTS NO.3 TO 5 CEASE TO BE PARTNER OF THE 1^ST PETITIONER ... RESPONDENTS

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(BY SHRI. M.N. SESHADRI, SENIOR ADVOCATE FOR SMT. TEJASWINI RAJKUMAR, ADVOCATE FOR R1; VIDE ORDER DTD.06.07.2021 - NOTICE TO R2 TO R5 IS DISPENSED WITH)

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W.P No.11767/2021

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN O.S.NO.6229/2017 AND BE PLEASED TO SET ASIDE THE ORDER PASSED ON IA NO.10 DTD 24.06.2021 VIDE ANNX-K AND ALSO THE ORDERS PASSED ON IA NO.8 DTD 22.09.2020 VIDE ANNX-F RESPECTIVELY

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THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 06.07.2021, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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ORDER

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This writ petition is filed by defendants No.1 and 5 in O.S. No.6229/2017.

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For the sake of convenience, parties shall be

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referred to as per their ranking in the Trial Court.

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First respondent/plaintiff has filed the instant

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suit against petitioners for ejectment contending inter alia that she is the owner of suit property and under lease deed dated 01.11.2001, she has leased it in favour of first defendant on monthly rent of Rs.18,000/-. The lease deed has been modified on 11.10.2004 fixing the lease rent at Rs.49,800/- per month.

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W.P No.11767/2021

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The suit property was subject matter of guarantee executed by the plaintiff in favour of KSFC¹ . KSFC, exercising powers under Section 29 of the KSFC Act² , sold the property in favour of first defendant. Plaintiff challenged the same before this Court. In W.A. No.2263/2007, this Court vide judgment dated 13.03.2013 has allowed plaintiff's writ appeal and set-aside the sale. The said judgment has attained finality with the dismissal of SLP(C) No.37064-67/2013 on 27.01.2017.

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Plaintiff has issued a legal notice on 21.02.2017 demanding vacant possession and arrears of rent from January 2006 and occupation charges amounting to Rs.6,23,00,000/- and thereafter, filed the instant suit.

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On 18.02.2020, plaintiff has filed an application

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under Section 151 of CPC for a direction for payment of rents at current market value. By the impugned order dated 22.09.2020 (Annexure-F), the learned Trial Judge

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1 Karnataka State Financial Corporation

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2 Karnataka State Financial Corporation Act

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W.P No.11767/2021

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has allowed the application in part and directed defendants to pay a sum of Rs.95,50,456/- towards arrears of rents for the period from 01.02.2006 to 31.08.2020 within four months from the date of the order and further directed them to continue to pay the monthly rent regularly, till the disposal of the suit.

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On 23.01.2021, defendants No.1 to 5 filed I.A. No.11 under Order I Rule 10(2) & (4) of CPC to implead KSFC as defendant No.6. On 30.03.2021, plaintiff has filed I.A. No.10 under Section 151 of CPC for release of the amount deposited by the first defendant. By common order dated 24.06.2021, (Annexure-K) learned Trial Judge has allowed I.A. No.10 and dismissed I.A. No.11. Hence, this petition.

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Shri. Ravishankar, learned Advocate for defendants has argued that the Hon'ble Supreme Court of India has held that plaintiff was justified in seeking attachment of the sum of Rs.2.92 Crores, the consideration

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W.P No.11767/2021

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amount paid by defendant No.1, which is lying with the KSFC. Therefore, the question of directing any further payment is impermissible. He submitted that first defendant has complied with the direction and deposited the sum of Rs.92,50,456/-.

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Shri. M.N.Sheshadri, learned Senior Advocate

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for the plaintiff submitted that the suit is for ejectment and the first defendant is duty bound to pay monthly rents. As on date, rents have not been paid from March 2020 and therefore this writ petition is not maintainable. The application for impleadment filed by KSFC has been dismissed on 24.06.2021 and it has attained finality. However, the petitioner has arrayed KSFC as second respondent in this writ petition. Petitioner has filed I.A. No.11/2021 to implead KSFC in order to defeat plaintiff's right to receive rent. The learned Trial Judge has directed first defendant to pay the arrears of rent to the plaintiff. But, in violation of that order first defendant has deposited the arrears of rent in the Court. The conduct of first

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defendant clearly shows that he has been making all efforts to delay the process of eviction.

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I have carefully considered rival contentions and perused the records.

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In para 8 of the writ petition, the first defendant has stated facts with regard to proceedings in Misc. No.521/2004 in the City Civil Court under Section 31 of the KSFC Act³ , holding that KSFC is entitled to recover Rs.3,24,22,923/- from the plaintiff with interest and that the said order is subject matter of execution proceedings in E.P. No.2673/2018 in the Commercial Court. It is also averred that first defendant is not a party in the said proceedings and is unaware of the status of execution petition.

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In para 9 of the writ petition, first defendant has admitted that it has deposited the sum of Rs.95,50,456/as ordered by the City Civil Court as per Annexure-F.

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3 Karnataka State Financial Corporations Act, 1951

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The order as per Annexure-K is a common order on I.A. No.10 and I.A No.11. First defendant has restricted the challenge only so far as order on I.A. No.10 is concerned. In substance, first defendant's grievance is, plaintiff could not have sought directions from the City Civil Court for payment of arrears of rent or current rent because, the course of action in respect of payment of rents has been set by the orders of the Apex Court.

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Perusal of order passed by the Hon'ble Supreme Court of India dated 17.01.2020 in Misc. Application No(s).3027-3033/2018 in SLP No.37064-37067/2013 shows that first defendant had sought to purchase the suit property for Rs.2.92 Crores from KSFC. The sale has been set-aside by this Court. The consideration amount has been given by City Union Bank Ltd., to first defendant.

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The Apex Court has also recorded that first defendant has neither paid nor deposited rents for 11 years from February 2006 to January 2017.

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W.P No.11767/2021

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The record of proceedings in the suit shows that on 22.03.2021, the learned Trial Judge has considered I.A. No.9 filed under Order I Rule 10(2) of CPC by the defendants to implead KSFC and rejected the same as not maintainable. On 23.03.2021, the learned Advocate for plaintiff has sought for a direction against defendants to comply with payment of arrears of rent. Learned Trial Judge has recorded the submission of learned Advocate for the defendants that a writ petition was filed. Shri. M.N.Seshadri, has rightly pointed out that the said submission was incorrect because, this writ petition is filed on 28.06.2021.

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The Order sheet dated 30.03.2021, shows that a demand draft was tendered on behalf of first defendant and the learned Trial Judge has ordered it to be encashed and deposited.

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Learned Advocate for petitioner has produced a copy of order in Com. Ex. No.2673/2018 whereby, the Commercial Court has issued attachment warrant to attach Rs.95 Lakhs deposited in O.S. No.6229/2017.

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Petitioner has sought for an interim order to stay the operation of that portion of order on I.A. No.10 which permits plaintiff to withdraw the amount of Rs.95,50,456/-. Admittedly, petitioner is the tenant under the plaintiff and duty bound to pay rents regularly. In substance, petitioner's endeavor in filing this writ petition is to prevent plaintiff from with drawing the amount deposited by the petitioner.

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The facts recorded hereinabove, fortify the submission of learned Senior Advocate that first defendant has made all efforts to defeat plaintiff's rights and he has not approached this Court with clean hands. Hence, this writ petition must fail and in view of the conduct of the

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W.P No.11767/2021

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petitioner, it is dismissed with cost of Rs.10,000/- payable

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to the plaintiff.

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Sd/JUDGE

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SPS

M/S. Tamarind v. Smt Sarasamma

Case brief

What is this about?

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M/S. Tamarind v. Smt Sarasamma

Case brief

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