Partly allowed

Rajkumar Sethupathy v. M/S. Mid Valley Entertainment

Madras HC17 Apr 2014CS/25/2013

Case brief

AI extract

What is this about?

This suit for specific performance and recovery of rent and damages was partially allowed. The High Court decreed payment of arrear rent but rejected claims for service tax, specific interest rate, and damages for loss of income, finding the plaintiff's own actions precluded the latter claim.

What did the court decide?

Directed the defendant to pay Rs.36,50,00/- with interest at 6% per annum from the date of decree till date of payment.

Rajkumar Sethupathy Vs M/S. Mid Valley Entertainment — Execution and Attachment | Madras HC (2014)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED: 17.04.2014

¶4

CORAM:

¶5

THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN

¶6

C.S.No.25 of 2013

¶7

Rajkumar Sethupathy ..Plaintiff

¶8

-Vs.-

¶9

M/s. Mid Valley Entertainment Limited Rep. by its Director, R. Chandra Sekaran 9-A, 9^th Floor, Gee Gee Emerald 312, Valluvarkottam High Road Nungambakkam Chennai-600034.

¶10

..Defendant

¶11

Prayer:- Suit filed under Order IV Rule 1 of O.S.Rules read with Order VII Rule 1 of CPC to pass a judgment and decree (a) directing the defendant to pay a sum of Rs.45,11,951/- towards arrears of rents for the schedule property including interest and service tax component, along with future interest on Rs.41,31,747/- at the rate of 15% per annum from the date of plaint till the date of realization; (b) directing the defendant to pay a sum of Rs.9,94,500/- towards damages for the loss of rental income for the schedule property for the period 16.04.2012 to 26.11.2012 and (c) directing the defendant to pay future rents at Rs.1,35,000/- per month for the schedule property as damages from the date of plaint till the date of removal of fixtures (d) the cost of the suit.

¶12

For Plaintiff : Mr.S. Rajasekar

¶13

Defendant : ex parte (vide order dated 28.1.2014) --- J U D G M E N T

¶14

¶15

The landlord of the building is the plaintiff herein.

¶16

Brief facts:

¶17

The plaintiff has given lease of the schedule building to the defendant for non-residential purpose. The defendant agreed to pay a sum of Rs.1,35,000/- as monthly rent. Since the defendant failed to pay the monthly rent, the plaintiff initiated proceedings for eviction before the Rent Controller, XVI Small Causes Court, Chennai in R.C.O.P.No.2548 of 2009.

¶18

Even during the pendency of the Rent Control Proceedings, the defendant failed to pay the monthly rent. This made the plaintiff to file an application in M.P.No.450 of 2010 to direct the defendant to deposit the admitted arrears. Since there was no follow up action taken by the defendant to pay the admitted rental amount, the learned Rent Controller was pleased to pass an order directing the defendant to deposit the amount on or before 24 January 2011, failing which it was indicated that further proceedings in R.C.O.P. would be stayed and an order of eviction would be made. The Rent Controller ultimately passed an order of eviction on 11 February 2011. The appeal preferred against the common order was dismissed by the appellate authority on 30 November 2011. The order has become final. The plaintiff filed E.P.No.162 of 2012 for execution of the

¶19

¶20

eviction order passed by the Rent Controller. The defendant was finally evicted on 16 April 2012.

¶21

According to the plaintiff, the defendant failed to pay the monthly rent as well as the service tax with effect from January 2009. It is the further case of the plaintiff that the defendant failed to remove the movables and continued to keep it there up to 26 November 2012. Therefore, he could not use the premises. The plaintiff therefore wanted the defendant to pay a sum of Rs.9,94,500 towards damages for the period from 16 April 2012 to 26 November 2012.

¶22

The defendant was set ex parte on 28 January 2014.

¶23

The Issues :

¶24

This Court framed the following issues:

¶25

(i) Whether the plaintiff is entitled for a decree for a sum of Rs.45,11,951/- towards arrears of rent?

¶26

(ii) Whether the plaintiff is entitled to Rs.9,94,500/- towards damages for the loss of rental income for the period from 16 April 2012 to 26 November 2012.

¶27

(iii) Interest and cost?

¶28

¶29

Evidence:

¶30

The plaintiff was examined as P.W.1. The plaintiff marked Exs.P.1 to P.15.

¶31

Submissions:

¶32

The learned counsel for the plaintiff contended that the documents produced by the plaintiff would make it very clear that the defendant kept the rent in arrears from 12 January 2009 and as such he is entitled to a decree for arrears of rent. According to the learned counsel the defendant failed to remove its movables and as such the plaintiff could not give the building for rent. The plaintiff has got a justifiable claim for damages on account of the loss of income for the period from 16 April 2012 to 26 November 2012. The learned counsel therefore wanted a comprehensive decree to be passed in the matter.

¶33

Discussion:

¶34

There is no dispute that the schedule property was given on lease to the defendant on a monthly rent of Rs.1,35,000/-. Exs.P.3 and P.4 clearly indicates the monthly rent and the arrears of rent from January 2009 onwards. The learned Rent Controller (XVI Small Causes Court, Chennai) passed an order on 23 December 2010 directing the defendant to pay the

¶35

¶36

arrears of rent from January 2009 to November 2010 at the rate of Rs.1,35,000/- per month. These two documents (Ex.P.3 and P.4) would make it clear that the defendant kept the monthly rent in arrears from January 2009. The defendant is therefore liable to pay the rent for the period from January 2009 to 16 April 2012, the date on which possession was taken by the plaintiff.

¶37

The further question pertains to the actual amount payable by the defendant for the period in question. The defendant defaulted to pay the rent for the period from January 2009. In case the date of taking possession is taken viz., 16 April 2012, the defendant is liable to pay the rent for 40 months, which would come to Rs.54,00,000/-. The defendant has paid a sum of Rs.10,00,000/-. The plaintiff has adjusted a sum of Rs.7,50,000/- which was paid by the defendant by way of security deposit. These are all payments admitted by the plaintiff. Therefore the balance amount payable is only a sum of Rs.36,50,000/-. The plaintiff is not entitled for a sum of Rs.41,31,747/- as claimed in the plaint. The plaintiff is entitled for a decree for a sum of Rs.36,50,000/- . The first issue is answered accordingly.

¶38

The plaintiff wanted the defendant to pay the service tax for the period in question. However, the order dated 23 December, 2010 marked

¶39

¶40

as Exs.P.3 and P.4 does not contain any indication that there was a stipulation to pay the service tax at 10.3%. In fact the Rent Controller has made an observation that the question of payment of service tax would be decided during the time of final disposal of the Rent Control Original Petition. Even the final order does not contain any direction to pay the service tax. There are no documents produced by the plaintiff in support of his contention that the defendant is liable to pay service tax at 10.3%. Therefore I reject the claim with regard to payment of service tax by the defendant.

¶41

The next issue relates to damages on account of the loss of rental income. The plaintiff has taken up a contention that even though the building was taken possession by him on 16 April 2012, he could not occupy it till 26 November 2012 on account of the failure on the part of the defendant to remove the furnitures and other movables. The plaintiff placed reliance on the communication marked as Ex.P.14 in support of his contention that he called upon the defendant to remove the movables.

¶42

There is no dispute that the plaintiff earlier issued Exs.P.14 notice dated 9 November 2012 calling upon the defendant to remove the movables failing which it was indicated that he would be forced to remove the same and auction the materials to realise his dues. However there is

¶43

¶44

another document marked as Ex.P.13 in and by which the defendant made a complaint that he was not permitted to remove the movables by the plaintiff. In any case, the plaintiff as per Ex.P.14 informed the defendant that in case he failed to remove the movables, the same would be removed by him within a period of fifteen days. Since the plaintiff has already indicated that failure on the part of the defendant would result in removing the movables by him, there is no question of directing the defendant to pay the damages for the said period. The plaintiff having opted to remove it at the cost of the defendant should have removed it. The plaintiff having said that he would remove it cannot now make a claim for damages alleging that the defendant failed to remove it. Therefore I am of the view that the plaintiff is not entitled to a decree for the loss of rental income for the period from 16 April 2012 to 26 November 2012. The second issue is therefore decided against the plaintiff.

¶45

The next issue relates to payment of interest. There are no documents produced before this Court to substantiate the contention that the plaintiff is entitled to interest at 15% per annum. The plaintiff failed to appear before the Master for recording evidence continuously. It was only on account of his fault the suit was kept pending. Therefore I reject the relief with regard to payment of interest for the past period.

Disposition:

In the result, the suit is decreed in part with proportionate cost.

¶50

There shall be a decree directing the defendant to pay a sum of Rs.36,50,000/- (Rupees thirty six lakhs fifty thousand only) with interest at

¶51

6% per annum from the date of decree till the date of deposit/payment.

¶52

17.04.2014

¶53

Index:Yes/No Internet: Yes/No Tr/

¶54

¶55

K.K.SASIDHARAN, J Tr

¶56

Pre-delivery order Judgment in C.S.No.25 of 2013

¶57

17.04.2014

Rajkumar Sethupathy v. M/S. Mid Valley Entertainment

Case brief

What is this about?

What did the court decide?

Rajkumar Sethupathy v. M/S. Mid Valley Entertainment

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

Coram

Case details

Similar cases

Vesa Holdings Pvt. Ltd., Vs K.G.S.Nair

K.Lalli Vs S.Pappi and 5 Others

Serum Institure of India Vs Orchid Chemiclas and

Castrol Limited & Another Vs M/S.Sr Oil and Co., & Another

Mr.S.Ganesan Vs Mr.S.Narayana RAo@ Narayanan

Mrs.Krishna Ponnuswamy&Another Vs Dr.Punitha Anand and 9 Others