Smt. Geetha, Master B. Raghavendra and Master Dilip Kumar vs M/s Lakhani Marketing Inc.

N. Kumar, J.—This is a defendants appeal directed against the judgment and decree of the trial Court which has decreed the suit of the plaintiff for recovery of money i.e. the advance amount paid at the time of taking the lease premises.

For the purpose of convenience the parties are referred to as they are arrayed in the original suit.

M/s. Lakhani Sales Corporation is the plaintiff. On 15.5.1996 under a written lease agreement they took the premises - R.d. Complex, No. 78/1. Suddaguntepalya village, Dharmaram College post, Bangalore-29 measuring 8729 sq.ft. on a monthly rent of Rs. 36,000/- and a sum of Rs. 20,550/- was agreed to be paid as maintenance charges. An amount of Rs. 6.78,600/- was paid as advance. When the" plaintiff could not continue as tenant, legal notice was issued on 21.11.96 informing that they are going to vacate the premises and accordingly, they vacated the premises on 20.2.1997. The defendants were asked to adjust the last three months of rent representing the notice period of three months and they were called upon to pay back the balance advance amount. The defendants refunded Rs. 1,00,000/-. The balance was not repaid. Therefore, a suit came to be filed for recovery of Rs. 4,27,800/- with interest at 24% p.a.

After service of notice, defendants entered appearance filed a detailed written statement. The lease transaction, the rate of rent, advance paid and the refund of Rs. 1,00,000/- was not disputed. What was disputed was that the plaintiff is not the tenant and therefore, the plaintiff is not entitled to the refund of the advance amount.

They further contended that there was a delay in getting another tenant. Therefore, they have sustained loss and damages much more than the amount to be refunded. They have spent Rs. 50,000/- towards brokerage. If all that is taken into consideration the defendants are not liable to pay any amount to the plaintiff as contended and accordingly sought for dismissal of the suit.

On the aforesaid pleadings the trial Court framed the following four issues :-

Whether the plaintiff proves the suit transaction as contended?

Whether the plaintiff is entitled to recover the interest at 23% per annum as claimed?

Whether the suit is not maintainable as contended?

Whether the plaintiff is entitled to recover the suit claim?

On behalf of the plaintiff, one Nirmal Dass Arora, the power of attorney holder was examined as PW1 and he produced 20 documents Exs.P1 to P20.

On behalf of the defendants, one S.M. Hanumappa was examined as DW1. One Sevennraj, the broker, was examined as DW2.

The trial court on appreciation of the oral and documentary evidence on record held that the plaintiff is the tenant. The lease agreement on which reliance is placed, though it is marked as evidence, it is not a registered document and therefore, the terms of the lease agreement cannot be looked into and therefore, it held it is a tenancy month to month and the notice issued terminating the tenancy is valid as the plaintiff has forgone three months rent he is entitled to three months of balance rent. Farther, it found that claiming of interest at 24% p.a. is highly excessive and therefore, it awarded interest at 12% p.a. on Rs. 4,27,800/- from the date of the suit till decree and 6% from the date of decree until actual payment. Insofar as the claim for damages is concerned, it rejected on the ground that no counter claim is made, court fee is not paid and no evidence is also adduced to substantiate the same.

Aggrieved by the said judgment and decree, the present appeal is filed by the defendants.

The learned counsel for the defendants assailing the impugned order contended, though the plaintiff agreed for adjustment of three months rent, the key of the premises was handed over only in April, 1997 and therefore, the plaintiff was liable to pay rent till the date of handing over of key. Consequently, he contended defendant; is a widow with three children. She has spent considerable amount towards brokerage for making the lease premises suitable for occupation for which also she had incurred expenditure, the premises is situated at the outer ring road of Bangalore and it is not easy to get tenant. The original period agreed upon is six years and they did not remain in the premises even for a couple of months. Under these circumstances, the defendant has sustained huge loss and damages which should have been compensated by adjusting towards the advance amount to be refunded and therefore, he submits the impugned judgment and award passed by the trial Court is illegal and deserves to be set aside.

Per contra, the learned counsel for the plaintiff-respondent supported the impugned order.

In the light of the aforesaid fact and the rival contentions, the point that arises for our consideration in this appeal is :-

Whether the decree passed by the trial Court directing refund of the balance advance amount suffer from any infirmity which calls for interference by this Court?

Facts are not in dispute. Under a lease deed dated 15.5.1996 the schedule property was leased to the plaintiff on a monthly rent of Rs. 36,000/- plus maintenance charges of Rs. 20,550/-. An advance of Rs. 6,78,700/- was paid. Rent was paid till November, 1996. The petitioner vacated the premises on 20.2.1997. A sum of Rs. 1,00.000/- was refunded. The balance repayable was Rs. 4,27,800/- after adjusting three months rent. The contention that the key was handed over in April, 1997 and till such time the plaintiff has to pay the rent if he has not paid is not supported by any evidence on record. Therefore, the trial Court rightly declined to calculate the rent payable by the plaintiff till that date. We do not see any material on record which supports the case of the defendant and therefore, we do not see any justification for the said claim.

Assuming that: some inconvenience is caused, to the defendant as the tenant who has taken the premises has decided to vacate within a couple of months, that by itself will not give any right to the defendant to refuse to pay the advance amount. In the lease agreement entered into, though the period stipulated was 6 years, there was no term in the contract stipulating that if the plaintiff terminates the tenancy prior to six years period, he would not be entitled to the advance amount paid. The case put forth was only in the event of breach of terms of the contract, either of the party has right to terminate the lease before the expiry of the six years period. The trial Court has negatived the comention on the ground that the lease in question is ''not a registered one. Therefore, the period of six years stipulated in the agreement cannot be looked into. It can be looked into only for the collateral purpose. This approach of the trial Court cannot be found fault with. Though the plaintiff vacated the premises in November itself, because of the opposition by the defendant, he agreed to pay three months rent in lieu of three months notice period and he claimed only the balance amount. Under these circumstances, it cannot be said that the claim made by the plaintiff is in any way unjustified. Insofar the damages sustained by the defendant on account of their inability to secure another tenant and payment of brokerage and any other expenses suitable is concerned, as rightly pointed out by the trial Court, no counter claim is put forth, no court fee is paid and that cannot be a defence to deny refund of advance amount paid. Admittedly, a sum of Rs. 1,00,000/- was paid and the balance is not paid. The trial Court on evaluation of the oral and documentary evidence on record has rightly held that the plaintiff has established his claim and decreed the suit of the plaintiff.

At the time of admission of this appeal in pursuance of the interim order, a sum of Rs. 2,60,000/- is paid. Admittedly, Rs. 1,00,000/- is paid prior to the filing of the suit. The plaintiff is now entitled to the balance amount with interest as granted by the trial Court.

In that view of the matter, we do not see any merit in this appeal. Accordingly, the appeal is dismissed without costs.