Allowed

Sri S Subramaniam v. Sri George Alexander Muthoot

Karnataka HC24 Nov 2023RFA/1666/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a Trial Court dismissal of a possession suit. The Apex Court held an unregistered 15-year lease deed created only a monthly tenancy terminable by notice under Section 111(h) of the Transfer of Property Act.

What did the court decide?

Appeal allowed; impugned decree set aside; vacant possession granted to appellant by 30.06.2024; claim for mesne profits dismissed.

Sri S Subramaniam Vs Sri George Alexander Muthoot — Landlord and Tenant | Karnataka HC (2023)

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1 - NC: 2023:KHC:42585 RFA No. 1666 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1666 OF 2018 (POS)

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BETWEEN:

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SRI S SUBRAMANIAM S/O SAMBASIVA MUDALIAR AGED ABOUT 50 YEARS, R/AT NO.22 RAJA GANAPATHY NILAYA 21^ST MAIN ROAD, BANASHANKARI 1^ST STAGE BANGALORE-560 070.

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…APPELLANT (BY SRI. H R ANANTHA KRISHNA MURTHY .,ADVOCATE)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SRI GEORGE ALEXANDER MUTHOOT S/O M GEORGE MUTHOOT MANAING DIRECTOR MUTHOOT FINANCE LIMITED HEAD OFFICE: MUTHOOT CHAMBERS OPP SARITAH THEATRE COMPELX BANERJI ROAD, KOCHI-682018 KERALA STATE.

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…RESPONDENT (BY SRI. AMIT DESHPANDE .,ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.07.2018 PASSED IN O.S.NO.4447/2014 ON THE FILE OF THE I ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR POSSESSION, MESNE PROFITS.

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

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NC: 2023:KHC:42585 RFA No. 1666 of 2018

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.447/2014 is directed against the impugned judgment and decree dated 31.07.2018 passed by the I Addl.City Civil and Sessions Judge, Bangalore, whereby the suit filed by the appellant – plaintiff for ejectment and recovery of service taxes and other reliefs was dismissed by the trial court.

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Heard learned counsel for the parties and perused the material on record.

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For the purpose of convenience, the parties are referred to by their respective ranks before the trial court.

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The material on record indicates that the petitioner – plaintiff instituted the aforesaid suit against the respondent – defendant inter alia contending that the respondent was a tenant under the appellant in respect of the suit schedule premises on a monthly rent of Rs.25,480/- per month in addition to service taxes to be paid by the respondent – defendant. It was contended that the lease deed dated 19.11.2009 stipulating a period of 15 years was an unregistered document and did not create a valid term lease for the said period, as a result of which, only monthly tenancy

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from month to month terminable by issuance of 15 days notice was created between the appellant and respondent. It was also contended that the appellant had issued a notice dated 28.02.2014 to the respondent terminating his tenancy and since the respondent had issued an untenable reply dated 25.03.2014 and also did not pay the arrears of service taxes of Rs.1,84,000/-, the appellant – plaintiff instituted the aforesaid suit against the respondent.

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The respondent – defendant filed his written statement admitting the jural relationship of landlord and tenant between the plaintiff and defendant. It was however contended that the lease was for a period of 15 years from 19.11.2009 and the plaintiff was not entitled to terminate the tenancy of the defendant under him prior to expiry of the said period. It was also contended that the defendant was not liable to pay service tax as sought for by the plaintiff. It was therefore contended that the suit was liable to be dismissed.

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Based on the above pleadings, the trial court framed the following issues:-

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1. Whether the plaintiff proves that he has terminated the tenancy of the defendant by issuing a notice

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4 - NC: 2023:KHC:42585 RFA No. 1666 of 2018

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dated 28.02.2014 as contemplated under Sec. 106 of the T.P. Act ?

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2. Whether the defendant proves that the plaintiff

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has purposely not produced the ease agreement dated 19.11.2009 in order to save the stamp duty and penalty ?

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3. Whether the defendant proves that the ease period is from 19.11.2009 for a period of 15 years the plaintiff cannot terminate the ease before the expiry of ease period?

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4. Whether the plaintiff is entitled for the relief of

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possession, arrears and mesne profits as prayed?

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5. What decree or order ?

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The plaintiff examined himself as PW-1 and Exs.P1 to

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P13 were marked, while the Assistant Manager of the defendant – company was examined as DW-1 and Ex.D1 was marked. After hearing the parties, the trial court came to the conclusion that the termination of tenancy of the defendant by the plaintiff was illegal and invalid and consequently, proceeded to dismiss the suit by passing the impugned judgment and decree, which is assailed in the present appeal.

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The following points arise for consideration in the present appeal:-

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(i) Whether the trial court was justified in coming to the conclusion that the appellant – plaintiff was not entitled to terminate

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5 - NC: 2023:KHC:42585 RFA No. 1666 of 2018

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the tenancy of the respondent – defendant within the lease period of 15 years commencing from 19.11.2009 and consequently, the suit was premature and liable to be dismissed?

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(ii) Whether the impugned judgment and decree passed by

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the trial court warrants interference in the present appeal?

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Since both the points are interlinked with each other, they are taken up together for consideration.

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A perusal of the material on record including the impugned judgment and decree will indicate that the trial court has answered issue Nos.2 and 3 in favour of the respondent – defendant by coming to the conclusion that the lease period between the appellant – plaintiff and respondent – defendant was for a period of 15 years with effect from the date of the lease agreement dated 19.11.2009 and the appellant could not have terminated the lease / tenancy of the respondent by issuance of notice dated 28.02.2014 before expiry of the period of 15 years and the appellant had deliberately not produced the lease agreement to avoid payment of duty and penalty. In this context, the trial court

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failed to consider and appreciate that apart from the fact that the respondent had not adduced any evidence to establish that the

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lease deed was in the custody of the appellant, who had deliberately / intentionally not produced the same before the trial court, even according to the respondent – defendant, the said lease deed dated 19.11.2009 for a period of 15 years was an unregistered document, which was consequently incapable of being relied upon for the purpose of claiming that the lease was for a period of 15 years. It is well settled that any lease of immovable property for a period exceeding one year which is not for manufacturing or agricultural purposes is deemed to be a monthly lease as contemplated under Sections 106 and 107 of the Transfer of Property Act, capable of being determined and terminated by issuance of a notice under Section 111(h) of the said Act.

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In the instant case, since even according to the respondent, the said lease deed dated 19.11.2009 was an unregistered document, the same merely created a monthly tenancy and was inadmissible and could not have been relied upon to contend that the lease subsisted for a period of 15 years. It is therefore clear that the appellant terminated the monthly tenancy of the respondent by issuance of notice dated 28.02.2014 under Section 111(h) of the T.P.Act and consequently, the finding

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7 - NC: 2023:KHC:42585 RFA No. 1666 of 2018

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recorded by the trial court that the tenancy had not been terminated is clearly illegal and contrary to law and the material on record and the same deserves to be set aside.

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The aforesaid facts and circumstances clearly establish that the trial court misdirected itself and fell in error in rejecting the claim of the appellant by improper and erroneous appreciation of the material on record warranting interference in the present appeal.

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Accordingly, Point Nos.1 and 2 are answered in favour of the appellant and the impugned judgment and decree passed by the trial court deserves to be set aside and the suit filed by the appellant against the respondent deserves to be decreed in favour of the appellant.

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In the result, I pass the following:-

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ORDER

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(i) Appeal is hereby allowed.

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(ii) The impugned judgment and decree dated 31.07.2018 passed in O.S.No.4447/2014 passed by the trial court is hereby set aside.

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8 - NC: 2023:KHC:42585 RFA No. 1666 of 2018

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(iii) However, in the interest of the Justice, the respondent is granted time up to 30.06.2024 to quit, vacate and deliver vacant possession of the suit schedule premises to the appellant, subject to the following terms and conditions:-

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(a) The respondent shall pay up to date arrears of rent, if any, due to the appellant – plaintiff in respect of the suit schedule premises.

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(b) The respondent shall also continue to pay the last paid monthly rent to the appellant as and when it falls due till he vacates and hands over vacant possession of the suit schedule premises to the appellant.

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(c) The respondent shall not sub-let, under-let or part with possession or induct any third party into the suit schedule premises till the respondent quits and delivers the vacant possession of the suit schedule premises to the appellant.

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(d) In view of the submission made on behalf of the appellant, prayer No.(b) sought for in the plaint, is hereby dismissed as not pressed.

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DHA/SRL

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Sd/JUDGE

Sri S Subramaniam v. Sri George Alexander Muthoot

Case brief

What is this about?

What did the court decide?

Sri S Subramaniam v. Sri George Alexander Muthoot

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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