A. Sajjan Raj vs Chaitra Advertising Pvt. Ltd.

Aravind Kumar, J—This is a defendant''s appeal calling in question the correctness and legality of Judgment and decree passed by XXXI Additional City Civil Judge, Bengaluru dated 28.10.2002 in O.S.4881/92.

Parties are referred to as per their rank in the trial court.

Plaintiff filed a suit for recovery of a sum of Rs. 53,481/- with costs and interest contending inter alia that he was a tenant under the defendant in respect of the non residential premises situated at Vasanthnagar West, Bengaluru on a monthly rent of Rs. 6,500/- which includes Rs. 4,350/- towards monthly rent and rent of Rs. 2,150/- towards fixtures and on vacating the premises on 31.03.91 the advance amount of Rs. 56,250/- had not been repaid by defendant and as such the plaintiff contended that after deducting two months rent defendant is due to plaintiff in a sum of Rs. 43,250/- and as such claiming said amount with interest and costs of legal notice suit for recovery of a sum of Rs. 53,481/- came to be filed.

On service of suit summons defendant appeared and filed written statement on 18.02.2000 denying the claim of plaintiff and setting up a counter claim for a sum of Rs. 12,458/-. On the basis of the pleadings of the parties trial court framed the following issues for its determination:

"1. Whether the plaintiff proves that the defendant is liable to pay the security advance amount of Rs. 43,250/- together with interest thereon at 18% per annum in a sum of Rs. 9,731/- along with notice charges of Rs. 500/- totally Rs. 53,481/-?

Whether defendant proves that he had replaced materials and is entitled to deduct the expenditure amount of Rs. 24,207/-?

Whether the defendant proves that he is entitled to counter claim a sum of Rs. 12,548/- against the plaintiff?

Whether the defendant is entitled for a decree against the plaintiff for a sum of Rs. 12,548/- as a counter claim?

Whether the defendant is entitled to interest at 18% per annum on the said counter claim amount from the plaintiff?

Whether the plaintiff is entitled for a decree against the defendant for a sum of Rs. 53,481/-?

What decree or order?"

On issues being framed both parties tendered oral as well as documentary evidence namely plaintiff examined its power of attorney holder as PW-1 and in all produced nine documents and got them marked as Exhibits P-1 to P-9. Defendant got himself examined as DW-1 and produced two documents and got them marked as Exhibits D-1 and D-2.

Trial court after considering the pleadings, evaluating the evidence tendered by the parties and after considering rival contentions raised by learned advocates decreed the suit of the plaintiff for a sum of 14,012.50 with proportionate cost and interest on Rs. 11,750/- at 18% p.a. from the date of suit till realization taking note of the fact that defendant had paid a sum of Rs. 25,000/- when very same plaintiff had filed execution petition in earlier round of litigation. It is this Judgment and decree which is under challenge in this appeal.

I have heard the arguments of Sri. K.S. Nagaraja Rao, learned counsel appearing for appellant and though the matter is called twice none have appeared on behalf of the respondent. Suit is of the year 1992 i.e., filed 23 years back. This appeal was listed for final hearing in the year 2010 itself and same had been dismissed for default and said order came to be recalled. As such I do not find any good ground to grant any further time to the respondent. On the basis of the arguments advanced by Sri. K.S. Nagaraja Rao, learned counsel appearing for appellant and on perusal of the pleadings as well as evidence I have proceeded to adjudicate this appeal on merits.

It is the contention of Sri. K.S. Nagaraja Rao, learned counsel appearing for appellant-defendant that trial court committed a serious error in awarding interest at the rate of 18% p.a. when there is no contract to the said effect and as such Judgment and decree passed by trial court is liable to be set aside. He would elaborate his submission by contending that defendant after adjusting a sum of Rs. 43,707/- was due to the respondent-plaintiff a sum of Rs. 12,543/-. It was also contended on account of the respondent tenant not handing over possession of the premises which was in occupation as a tenant in a good and tenable condition as agreed to under the lease deed Exhibit P-5, plaintiff was liable to pay damages and as such defendant was entitled to deduct the amount payable to the plaintiff. It is also contended that plaintiff had to satisfy the counter claim set up by the defendant and non consideration of this vital aspect by the trial court has resulted in miscarriage in the administration of justice. Hence, he prays for counter claim being allowed and suitable orders being passed insofar as claim of the plaintiff is concerned after taking into account the evidence on record.

Having heard counsel appearing for appellant-defendant and on perusal of the Judgment and decree passed by trial court as well as evidence available on record, this court is of the considered view that following point would arise for determination:

"1. Whether the trial court was justified in decreeing the suit for a sum of Rs. 14,012.50 with proportionate cost and interest on Rs. 11,750/- @ 18% p.a.? and, if not, to what amount plaintiff is entitled for?

Whether defendant is entitled for the counter claim as prayed for in the written statement and reiterated in this appeal?"

At the cost of repetition facts in brief requires to be stated for adjudicating Points 1 and 2 formulated herein above and it reads as under:

"Plaintiff was inducted as a tenant of the premises bearing No. 38, 7th Floor, Vasanth Nagar West, Bengaluru which premises undisputedly belonged to the respondent/defendant and the plaintiff was inducted as a tenant under the lease agreement dated 01.03.1985-ER-6 and it was renewed on 01.03.90 which lease deed came to be marked as Exhibit P-5 before trial court. Though initial period of lease was three years it was extended and under Exhibit P-5 it was agreed that the rent of the building was Rs. 4,350/- per month and hire in respect of fixtures was Rs. 2,150/- per month. Thus, in all plaintiff was required to pay a sum of Rs. 6,500/- per month. Subsequently on 31.03.91 plaintiff vacated the premises and handed over possession of the premises. It is thereafter present dispute arose between the parties. It is not in dispute that the key of the premises which was in occupation of the plaintiff was handed over to the defendant on 31.03.1991 and after inspection of the premises without any demur possession was taken by defendant and at the time of taking over possession of the suit schedule premises defendant did not raise any objection with regard to condition of the building."

Subsequently after four days i.e., 04.04.91 defendant addressed a letter to the plaintiff alleging that certain items were missing from the premises which was in occupation of the plaintiff and list of those items which was missing was indicated in the letter dated 04.04.1991 Exhibit P-8. It is because of this alleged deficiency or building not having been handed over in a tenable condition to the defendant and also on account of the plaintiff not carrying out the minimal repairs like painting, polishing etc., defendant set up a counter claim of Rs. 12,548/- against plaintiff in the written statement. Undisputedly written statement has not been filed under Order VIII Rule 6A. No court fee was paid at the time of raising of counter claim as could be seen from the records of the trial court. It is obvious that said fact might have been pointed out by trial court, and as such defendant has woken up from his slumber and after gap of two years has paid court fee on the counter claim i.e., on 11.02.2002 as evidenced from the order sheet and also the memo filed by defendant which is available in the trial court records.

RE: POINT NO. 1:

Trial court while decreeing the suit of the plaintiff has awarded interest @ 18% p.a. on Rs. 11,750/-. However, no reasoning is assigned or finding recorded by trial court as to the basis on which 18% p.a. interest having been awarded.

Section 34 of C.P.C mandates that in so far as a decree for the payment of money is concerned, the court adjudicating the suit while decreeing the suit would order interest at such rate as it deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the court may think fit.

Proviso to section 34 enables such court to award interest exceeding six per cent per annum if the liability is in relation to the sum adjudged relates to a commercial transaction. However, the upper limit has been fixed to be that of the interest that is charged by any Nationalised Bank as per Explanation I to proviso. As already noticed herein trial court has not assigned any reason whatsoever for awarding of interest @ 18% p.a. on Rs. 11,750/-. Thus, it would not detain this court to arrive at a conclusion that interest awarded by trial court @ 18% p.a. cannot be sustained. Undisputedly there is no contract between the parties with regard to payment of interest and transaction in question is not a commercial transaction. The fact that defendant has also raised a counter claim on account of alleged non handing over possession of suit schedule premises to the defendant in a tenable condition cannot be lost sight of and as such plaintiff cannot be heard to contend that he would be entitled to interest @ 18% p.a. Thus, in the absence of contract to the contrary, this court is of the considered view that interest awarded by trial court to the extent of 18% p.a. requires to be modified and in respect of the decree granted by trial court directing the defendant to pay the plaintiff a sum of Rs. 14,012.50 cannot be faulted with inasmuch as trial court having taken note of the payments made by defendant in execution case No. 214/97 has rightly quantified the amount payable by defendant to the plaintiff. There is no error committed by the trial court in that regard. In that view of the matter point No. 1 is partly answered in favour of appellant-defendant.

RE: POINT NO.2:

Defendant in the written statement filed under Order VIII Rule 1 has contended that he is entitled for a sum of Rs. 12,458/- by way of counter claim with interest @ 18% p.a. contending inter alia that at the time of delivery of possession of the premises plaintiff was due towards rent in a sum of Rs. 19,500/- (three months rent) and plaintiff had also damaged electrical fittings, sanitary fittings, water pipelines, plumbing facilities and as such defendant had been forced to replace switches, plates, starters etc., as indicated in the list of items in the communication dated 04.04.91 Exhibit P-8 addressed to the plaintiff and had claimed that a total sum of Rs. 24,207/- had been expended by him and as such plaintiff had to pay the amount to the defendant by way of counter claim. It was also contended that plaintiff having obtained an ex-parte decree had filed execution petition in Ex. P. No. 214/97 against defendant and had received a sum of Rs. 25,000/- and these aspects had not been considered by trial court in proper perspective.

It is not in dispute that plaintiff vacated the premises in question which was in its occupation as a tenant on 31.03.91. On the said date the key of the premises was handed over to the defendant. Without any protest or demur defendant has received the keys. No joint inspection was done by the parties to hold that the parties were at ad idem insofar as defects or alleged electrical fittings missing from the schedule premises. There was no joint inspection report drawn at the time of handing over and taking over of premises in question. After four(4) days plaintiff vacating the premises, defendant sent a communication dated 04.04.91 Exhibit P-8 to the plaintiff indicating in the said communication that electrical fittings, pipes etc., had been damaged by plaintiff and defendant had been perforced to replace the same and as such cost of it has to be borne by plaintiff. Except self serving testimony of defendant there was no other material available before trial court to arrive at a conclusion that there is semblance of truth in what defendant was contending. One of the documents which came to be produced by defendant in support of said claim was an invoice dated 30.03.91 Exhibit D-1 to contend that a sum of Rs. 6003.76 had been paid by him towards purchase of paint which was used for painting the premises in question which premises according to the defendant had not been handed over by plaintiff in a tenable condition though agreed to. Said invoice which came to be marked as Exhibit D-1 is dated 30.03.91. Undisputedly plaintiff vacated the suit schedule premises on 31.03.91. As such even before possession could have been delivered by plaintiff, defendant could not have visualized that building that would be handed over by plaintiff to the defendant would not be in a tenable condition. On the other hand, if the defendant intended to whitewash his building after plaintiff vacated the same, he cannot be heard to contend that all such expenses which he would be incurring after plaintiff vacated the premises is liable to be reimbursed or paid by the plaintiff to the defendant or no inference can be drawn that building was not handed over by plaintiff to defendant in a tenable condition. As such trial court has rightly held that there is no evidence available on record to arrive at a conclusion that building was not handed over in a tenable condition except self serving testimony of the defendant. On these grounds trial court has rightly rejected the counter claim of defendant which cannot be faulted with. Accordingly point No. 2 is answered against the appellant by affirming the Judgment and decree passed by trial court.

For reasons aforestated I proceed to pass the following:

ORDER

"1. RFA 1287/2002 is hereby allowed in part.

Judgment and Decree dated 28.10.2002 passed in O.S.4881/92 is hereby modified and it is hereby ordered that defendant shall pay a sum of Rs. 14,012.50 to plaintiff with proportionate cost and interest on Rs. 11,750/- @ 6% p.a. from the date of suit till the date of realization.

Appellant would be entitled to proportionate refund of the court fee.

Registry to draw the decree accordingly."