Karnataka High Court

Sixth Energy Technologies Pvt Ltd vs Smt Veena Srinivas on 14 February, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                                 NC: 2024:KHC:6369
                                                             WP No. 16342 of 2023




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 14TH DAY OF FEBRUARY, 2024

                                                 BEFORE
                               THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                                 WRIT PETITION NO.16342 OF 2023 (GM-CPC)
                      BETWEEN:

                      SIXTH ENERGY TECHNOLOGIES PVT LTD
                      CIN. U72900KA2003PTC032723,
                      HAVING ITS REGISTERED OFFICE AT
                      NO.62, VARADA, 10TH MAIN ROAD,
                      HMT LAYOUT, R T NAGAR,
                      BENGALURU-560032,
                      REP BY ITS AUTHORISED SIGNATORY AND DIRECTOR,
                      MR SIVASANKARAN M S,
                      S/O M V SIVAKUMAR,
                      AGED 67 YEARS.
                      REGISTERED UNDER COMPANIES ACT 1956
                                                                  ...PETITIONER
                      (BY SRI. C.K. NANDA KUMAR SENIOR COUNSEL FOR
                          SRI. SIVARAMA KRISHNAN, ADVOCATE)

                      AND:

                      1.   SMT. VEENA SRINIVAS
Digitally signed by        D/O LATE M T NARAYANA GOWDA,
VANDANA S
Location: High
                           AGED ABOUT 59 YEARS,
Court of Karnataka         NO.6, KANCHI, 2ND FLOOR,
                           4TH MAIN ROAD,
                           JAYAMAHAL EXTENSION,
                           BENGALURU-560042.

                      2.   SMT VANITHA GOWDA M N
                           D/O LATE M T NARAYANA GOWDA,
                           AGED ABOUT 59 YEARS,
                           NO.6, KANCHI, 2ND FLOOR, 4TH MAIN ROAD,
                           JAYAMAHAL EXTENSION,
                           BENGALURU-560046.

                      3.   SMT SUJAISHREE SUMANTH
                                    -2-
                                                    NC: 2024:KHC:6369
                                              WP No. 16342 of 2023




    D/O LATE M T NARAYANA GOWDA,
    AGED ABOUT 57 YEARS,
    503, 6TH FLOOR,
    BRINDAVAN APARTMENTS,
    NO.100, BULL TEMPLE ROAD,
    BENGALURU-560019.
                                                     ...RESPONDENTS
(BY SRI.DEEPAK BASAVARAJ, ADVOCATE FOR C/R1 AND R2;
    SRI. B.N. ANANTHANARAYANA, ADVOCATE FOR R3)

      THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE
THE ORDER DTD 11.07.2023 IN IA NO.2 AND IA NO.3 (ANNX-A) IN
COMM.O.S.1809/2022 PENDING ON THE FILE OF LXXXVIII ADDL.
CITY CIVIL AND SESSIONS JUDGE (COMMERCIAL COURTS
DIVISION) BENGALURU (CCH 89) AND ETC.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
                                  ORDER

This petition by defendant No.3 in Com.O.S.No.1809/2022 is

directed against the impugned order dated 11.07.2023 passed by

LXXXVIII Addl. City Civil & Sessions Judge, Bengaluru

(Commercial Court), whereby the application - I.A.No.II filed by

respondent No.1 - plaintiff under Order XXXIX Rule 10 CPC was

allowed while application - I.A.No.III filed by the petitioner -

defendant No.3 under Order XIII-A CPC for summary judgment

was rejected by the Trial Court.

2. Heard learned counsel for the petitioner and learned

counsel for the respondents and perused the material on record.

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3. A perusal of the material on record will indicate that

respondent No.1 - plaintiff has instituted the aforesaid suit against

her sisters - defendant Nos.1 and 2 and petitioner - defendant

No.3 for recovery of a sum of Rs.90,62,067/- together with future

interest at 8% p.a. along with applicable GST and for other reliefs.

It is an undisputed fact that respondent Nos.1 to 3 are sisters and

respondent Nos.2 and 3 are defendant Nos.1 and 2 while

respondent No.1 is the plaintiff and petitioner is defendant No.3 in

the suit. It is the specific contention of respondent No.3 - defendant

No.1 in the Trial Court that she alone is entitled to entire rentals

payable by the petitioner - defendant No.3 while respondent No.1

- plaintiff and respondent No.2 - defendant No.2 jointly contend

that all the three sisters i.e., plaintiff, defendant No.1 and defendant

No.2 are entitled to 1/3rd share each in the rents payable by

defendant No.3 - petitioner.

4. During pendency of the suit, respondent No.1 - plaintiff

filed an application - I.A.No.II for a direction to the petitioner -

defendant No.3 to deposit the arrears of rent and for other reliefs.

So also, petitioner - defendant No.3 filed an application - I.A.No.III

seeking summary judgment for dismissal of the suit on the ground

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that the same was not maintainable in law. Both the applications

having been taken up together, the Trial Court proceeded to pass

the impugned common order allowing I.A.No.II filed by the plaintiff

and rejecting I.A.No.III filed by the petitioner - defendant No.3, who

is before this Court by way of the present petition.

5. A perusal of the material on record will indicate that

there are several contentious issues and disputed questions of law

and fact that arise for consideration between the plaintiff and

defendant No.2 on one hand and defendant No.1 on the other.

While plaintiff and defendant No.2 jointly contend that they are

entitled to 1/3rd share each in the rents payable by defendant No.3,

the defendant No.1 claims that she alone is entitled to receive the

entire rental payable by defendant No.3. The said inter-se dispute

between the landlords, i.e., the plaintiff and defendant Nos.1 and 2

indicates that the same requires adjudication only after a full-

fledged trial and as such, it cannot be said that the petitioner -

tenant can not be directed to deposit the rents payable by him

before the Trial Court. It is pertinent to note that by impugned order

the Trial Court has merely directed the petitioner - defendant No.3

to deposit the entire arrears of rents payable before the Court

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without directing the said amount to be released / disbursed in

favour of any of the parties. Under these circumstances, I am of the

considered opinion that the impugned order passed by the Trial

Court allowing I.A.No.II and directing the petitioner - defendant

No.3, who is undisputedly a tenant to deposit the admitted arrears

of rent does not suffer from any illegality or infirmity nor can the

same be said to be capricious or perverse or resulted in

miscarriage of justice warranting interference by this Court in the

exercise of its jurisdiction under Article 227 of the Constitution of

India as held in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC

423 case.

6. Insofar as the impugned order rejecting I.A.No.III filed

by the petitioner is concerned, the material on record indicates that

the rival contentions between plaintiff and defendant Nos.1 and 2

require determination / adjudication only after trial and at this stage,

it cannot be said that the plaintiff has no real / reasonable prospect

of succeeding in the suit which involves genuine issues of material

facts which does not warrant summary judgment to be pronounced

by dismissing the suit. The said contention has also been rejected

by the Trial Court in the impugned order by holding as under:

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"I.A.II is filed by the plaintiff U/o XXXIX rules 7 and 10 CPC for a direction to the 3rd defendant to deposit of Rs.90,62,067/- towards arrears of rent claiming that disposal of the suit for arrears of rent will take substantial time and the 3rd defendant may plead inability to pay arrears of rent contending to have suffered loss in business just to defraud and in such an event, she will be put to untold misery and hardship.

I.A. III is filed U/o XIII-A CPC by the 3rd defendant for summary judgment dismissing the suit against him claiming that the plaintiff does not have real prospect of succeeding in the suit firstly because , there is no jural relationship of tenant and landlord between him and the plaintiff or the privity of contract and secondly, on account of inter se dispute between the legal heirs of the deceased landlord.

Defendants 1 and 3 have filed objections to I.A. II and the plaintiff has filed objections to I.A. III.

The learned counsel for the plaintiff argues that the 3rd defendant is denying the rents due in respect of the suit property on untenable even after on bringing to notice about the probate orders and the plaintiff's mother issuing NOC to pay the rents to the plaintiff and her sisters; the 3rd defendant is intentionally avoiding payment of rents and therefore should be directed to deposit the same in the court.

Per contra, the learned counsel for the 3rd defendant argues the will executed by Late Narayana Gowda cannot be the basis for establishing contractual relationship between the plaintiff and the 3rd defendant and there is not previty of contract between the parties. The legal heirs of the deceased landlord cannot claim the rents in their individual capacity; and they need to comply with provisions of Income Tax Act and GST Act and have common

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PAN. The 1st defendant has issued letter requesting the 3rd defendant not to entertain any request from the plaintiff or the 2nd defendant or to enter into any agreement with them.

It is also argued for the 3rd defendant that the property of the deceased vests in the executor in terms of Sec.211 of the Indian Succession Act. Unless the executor assents, the plaintiff who is one of the beneficiaries beneficiary under the will cannot claim rents. Only after filing of the inventory and final accounts as contemplated U/s 317 of Indian Succession Act, the legatee can sue for accounts.

In support of the above, court's attention to illustration (ii) to Sec.332 of the Indian Succession Act and the judgment in Dr.Mahesh Chand Sharma Vs. Raj Kumari Sharma (1996) 8 SCC 128 and S. Thiagarajan and Ors. Vs. Mrs. Chitkala Govindaswamy and Ors. of the Hon'ble High Court of Judicature, Madras in C.S. No.708/1992.

Several unreported judgments of the Hon'ble High Court, Delhi are relied upon to contend that suit can be summarily dismissed if the court comes to the conclusion that the plaintiff has no real prospect of success and there cannot be a second word about this proposition in view of the provisions contained in Order XIII-A CPC, as amended by Sec. 16 of the Commercial courts Act.

Order XXXIX Rule 10 CPC provides that "Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court.

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There is no dispute that the father of the plaintiff and defendants 1 and 2, was absolute owner of the suit property and he inducted the 3rd defendant as a tenant on monthly rental basis for a period of 15 years from 01.07.2010 under the registered lease deed dated 07.06.2010. On his death, his wife who was the executor under the registered will dated 04.06.2014 obtained probate as he has executed bequeathing the suit property equally in favour of the plaintiff and her two sisters and appointed probate in P & SC 365/2020 on 08.03.2022. The plaintiff and her two sisters are having equal rights over the suit property by virtue of the registered will executed by their father and the khata of the suit property stands in their joint names.

The tenanted property is commercial property. Under the Will dated 04.06.2014, the entire property consisting of basement, ground, first, second and terrace floor is jointly bequeathed in favour of the plaintiff, defendants 1 and 2. The plaintiff specifically claims that her mother has issued NOC for payment of rents in her and her sisters' favour, and the same is already handed over to the 3rd defendant. The same in my considered opinion amounts to assent from the executor of the will as contemplate U/s 332 of the Indian Succession Act; the suit is very much maintainable and the ratio in the judgments cited supra, is not of no avail to the 3rd defendant, in the above circumstances.

Further question of filing a report by the executor of the will as per Sec.317 of the Indian Succession Act arises only if there is such direction by the court. Order of the probate court is judgment in rem and if there is such direction to the executor or not is to be considered after parties let in evidence. The 3rd defendant being a tenant of the suit property cannot dispute the title of the lessor, specially when the lease deed provides that the term 'lessor'

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means and includes, the representatives, legal heirs, successors in interest, administrators, assignees etc.

Thus viewed from any angle, the contention that there is no lease agreement subsisting between the plaintiff, her sisters and the defendant cannot be accepted. Here it is relevant note that though it is submitted that the 3rd defendant is ready to pay rents to the plaintiff's mother, no steps are taken in that behalf till date; and no documents or produced to show that agreed rent was offered to the executor under the will any time after her husband's death.

The 3rd defendant, as rightly argued by the plaintiff's counsel, appears to be taking undue advantage of inter se dispute between the plaintiff and her sisters to deny the rents due; and also insisting on having a common PAN even when the request is to deposit the arrears of rents and future rents into court, just to avoid payment of the same.

In the above facts and circumstances of the case, the argument of the 3rd defendant that the plaintiff has no real prospect of succeeding and the suit is not maintainable U/s 332 of the Indian Succession Act or Sec.2(c)(1) of the Commercial Courts Act, is devoid of merits.

In the result, I pass the following.

ORDER I.A. II filed by the plaintiff U/O XXXIX Rule 10 CPC is allowed.

I.A.III filed by the 3rd defendant U/o XIIIA CPC is rejected. The 3rd defendant is hereby directed to deposit arrears of rent of Rs.90,62,067/- into the court by 10.08.2023."

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7. In my considered opinion, the Trial Court has correctly

and properly appreciated the rival contentions and noticed that

there is a serious and genuine dispute between the plaintiff and

defendant No.2 on one hand and defendant No.1 on the other as

regards to their respective entitlement to the rents payable by

defendant No.3. Under these circumstances, the impugned order

insofar as it related to rejecting I.A.No.III also cannot be said to

suffer from any illegality or infirmity and consequently, the

impugned order cannot be said to have resulted in miscarriage of

justice warranting interference by this Court in the present petition.