Karnataka High Court
Smt. Prema. K vs Mr. Afzal Ahmed on 28 February, 2024
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RFA No. 727 of 2019
IN THE HIGH COURT OF KARNATAKA,
PRINCIPAL BENCH AT BENGALURU
DATED THIS ON TUESDAY, 28TH DAY OF FEBRUARY, 2024
BEFORE
HON'BLE JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO.727 OF 2019
BETWEEN
SMT. PREMA. K.,
W/O. LINGE GOWDA,
AGED ABOUT 57 YEARS,
R/AT: MUNICPAL NO 836/A-45,
SRS ROAD, NEAR RNR BAR
PEENYA BENGALURU- 560080.
...APPELLANT
Digitally signed (BY SRI K.S. CHANDRAHASA, ADVOCATE)
by SAMREEN
AYUB DESHNUR AND
Location: HIGH MR. AFZAL AHMED,
COURT OF
KARNATAKA S/O. ABDUL RAZAAK,
AGED ABOUT 58 YEARS,
PROPRIETOR: HUNSUR WOOD CRAFTS,
NO 106/2, HESARAGHATTA MAIN ROAD,
CHIKKABANAWARA, BENGALURU-560090.
...RESPONDENT
(BY SMT. D. SOUBHAGYA, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96 R/W
ORDER XLI RULE 1 AND 2 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 01.02.2019 PASSED IN OS.NO.4598/2013
ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR
RECOVERY OF MONEY.
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RFA No. 727 of 2019
THIS REGULAR FIRST APPEAL COMING ON FOR
ARGUMENTS AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.01.2024, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This is defendant's appeal against the Judgment and
Decree passed in O.S.No.4598/2013 by the Court of XXXV
Additional City Civil and Sessions Judge Court, Bengaluru
(CCH-36) (for short hereinafter referred to as 'the Trial
Court') dated 01.02.2019.
2. Respondent/plaintiff has filed the suit for
recovery of security deposit paid to the defendant/
appellant. The said suit was decreed by the Trial Court by
the impugned Judgment and Decree and same is
challenged on the various grounds mentioned in the
memorandum of appeal.
3. To dispose of this appeal, brief facts of the case
of both the parties before the Trial Court were as under :
It was the case of plaintiff that he had obtained
property belonging to the defendant bearing No.836/A45
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situated at SRS Road, Peenya, Bengaluru on lease by
entering into a Rental Agreement dated 01.04.2011 for a
period of 36 months and monthly rent was Rs.6,030/-; the
period of lease was 03 years. Plaintiff had to pay security
deposit of Rs.6,50,000/-, which has to be refunded after
completion of the lease period termination of the lease
without any interest. Accordingly, a written agreement was
entered into between the parties on 01.04.2011. As per
terms of agreement, the plaintiff has paid the said security
deposit of Rs.6,50,000/- to the defendant and occupied the
suit property. It is further contended by the plaintiff that
the said lease was terminated and plaintiff has vacated and
handed over the vacant possession of the leased out
property to the defendant on 10.06.2012. The plaintiff has
demanded for refund of security deposit amount; the
defendant had issued three cheques for refund of security
deposit; all three cheques were dishonoured for insufficient
of funds, that was intimated to the defendant. However,
she did not repay the said amount of security deposit. It
was also contended that the defendant had paid
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Rs.1,00,000/- on 12.07.2012 and she had adjusted
Rs.66,000/- towards the arrears of rent for the six months
at the rate of Rs.6,030/- per month and in all she was due
for an amount of Rs.4,84,000/-. She did not repay the said
amount. Hence to recover the said amount, the plaintiff-
tenant has filed the suit in O.S.No.4598/2013 and prayed to
decree the suit.
4. Defendant has contended that the suit claim is
false. However, she has admitted about Lease Agreement,
amount of security deposit, rent, period of lease etc.,
According to her contention, before completion of the lease
period, plaintiff had vacated the premises. He has damaged
the building, for which, she has to spend more than
Rs.1,00,000/- towards repairing. She has repaid part of
security deposit by cash as under :
Rs.50,000/- On 03.08.2012
Rs.80,000/- On 02.09.2012
Rs.40,000/- On 19.10.2012
Rs.30,000/- On 06.12.2012
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5. In all she has paid Rs.2,00,000/- to the plaintiff
towards part of security deposit. After deducting all these
things, she was liable to pay only Rs.1,84,000/- and not
Rs.4,84,000/- as claimed by the plaintiff. With these
reasons prayed for dismissal of the suit with costs.
6. From the rival contentions of the parties, the
Trial court has framed the following :
ISSUES
(1) Whether the plaintiff proves that
defendant is due of Rs.4,84,000/- as on the
date of filing the suit?
(2) Whether the plaintiff is entitle for the
decree as prayed for?
(3) What order or decree?
7. Plaintiff to prove his case examined P.W.1 and
got marked Ex.P.1 to 11. Defendant has not lead oral or
documentary evidence.
8. The learned Trial Judge after hearing both
parties and appreciating the evidence on record, answered
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both issues in favour of the plaintiff and by the impugned
Judgment and Decree dated 01.02.2019, decreed the suit.
9. I have heard the arguments of learned
advocates for both sides.
10. The learned counsel for the appellant has
vehemently contended that plaintiff was not able to prove
his case before the Trial Court. From the conduct of
plaintiff, the case of defendant is more probable.
According to the case of the plaintiff, the defendant had
issued cheques to repay the part of security deposit and
said cheques were dishonoured, thereafter defendant had
paid Rs.2,00,000/- in cash on various dates. Admittedly,
plaintiff did not initiate any legal action for dishonour of
cheques issued by the defendant. It probabolises the case
of defendant about payment in cash. That was not
considered by the Trial Court. He further submits that in
the cross examination, the plaintiff has admitted that he
has received Rs.15,000/- and Rs.80,000/- from the
defendant and that was also not adjusted by the learned
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Trial Judge towards repayment of the security deposit. The
amount claimed by the plaintiff is a security deposit.
According to the Lease Agreement, defendant has not
liable to pay the interest. However, the learned Trial Judge
awarded an exorbitant interest of 18% per annum on the
said amount. Therefore, he prayed to allow the appeal and
dismiss the impugned Judgment and Decree.
11. Learned Advocate for the respondent has
submitted that the learned Trial Judge has considered the
contentions of both parties properly and there are no
reasons to interfere with the findings. While recording the
cross-examination of P.W.1, due to typographical mistake,
full stop was given to incomplete sentence and on that
basis defendant/appellant has contended that it was an
admission of payment of Rs.80,000/-; But if we read the
said sentence properly, then it clearly shows that it was a
typographical mistake. And on that basis, the appellant
cannot contend that P.W.1 had admitted of receipt of
Rs.80,000/-. The defendant had not led any evidence or
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entered into the witness box to give an opportunity to the
plaintiff to cross-examine her. Therefore, adverse
inference has to be drawn. With these reasons, she prays
to dismiss the appeal with costs.
12. The following points emerge for my
determination.
(1) Whether the trial Judge is justified
in holding that the amount due to the
plaintiff is Rs.4,84,000/-?
(2) Whether the trial Judge is justified
in awarding interest at the rate of 18%
per annum from 01.01.2012 till
realization of the entire amount.
13. Both points are connected and hence discussed
them together.
14. The following facts are not in dispute.
* The plaintiff has obtained property
belonging to the defendant bearing
No.836/A45 situated at SRS Road, Peenya,
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Bengaluru on term lease by an agreement
dated 01.04.2011.
* Interest free security deposit of
Rs.6,50,000/- was paid by the plaintiff while
obtaining the possession of the property to the
defendant and it was agreed to refund same
after termination of the lease.
* Before completion of agreed period of
three years, plaintiff had vacated the suit
premises and handed over same to the
defendant on 10.06.2012.
* Defendant had paid Rs.1,00,000/- on
12.07.2012 which is a part of security deposit.
Defendant had adjusted Rs.66,000/- in the
said security deposit towards arrears of rent.
* There was no condition for payment of
interest on the security deposit while returning
it to the plaintiff.
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15. The main defence of the defendant is that she
had paid Rs.4,66,000/- to the plaintiff out of security
deposit of Rs.6,50,000/- and she was liable to pay
Rs.1,84,000/- and contention of plaintiff is that the
defendant is liable to pay Rs.4,84,000/- out of the security
deposit.
16. Plaintiff-P.W.1 in his evidence, he iterated the
plaint averments. In his cross-examination, he has denied
the suggestion of the defendant that on 19.10.2012, he
received Rs.40,000/-, on 06.12.2012 he received
Rs.30,000/- and on 03.08.2012 he received Rs.50,000/-
from the defendant. In the cross-examination, a
suggestion was made which reads as under :
"It is incorrect to say that after
dishonour of the cheque dated 07.08.2012.
I have received Rs.80,000/- from the
defendant on 02.09.2012."
17. On the basis of said sentence, the learned
counsel for defendant has vehemently contended that the
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plaintiff has admitted about receipt of Rs.80,000/- on
02.09.2012, which case is made out by the defendant in
the written statement. And the contention of the learned
counsel for respondent is that due to typographical
mistake while recording the evidence, wrongly punctuation
mark was given to incomplete part of sentence after the
date "07.08.2012". From reading of the said sentence,
which clearly shows that it was a typographical mistake
and on that basis the defendant cannot contend that it
was an admission. Moreover, the defendant has not
entered the witness box to substantiate her defences and
no documents are placed on record to show that she has
had paid Rs.80,000/- on 02.09.2012. Hence said fact is
not proved. The submission of learned advocate for
respondent is tenable. However, the respondent should
have brought the said mistake to the knowledge of learned
trial Judge, at least after receiving of the certified copy of
deposition of P.W.1. Looking to above referred sentence, it
indicates that due to typographical mistake punctuation
mark (full stop) was typed at wrong place and before
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completion of sentence. If we read said part of sentence,
then it has no meaning. If we read whole ignoring
punctuation mark, then the said sentence was meaning. It
appears that a suggestion was made about payment of
Rs.80,000/- on 02.09.2012 after dishonour of cheques and
witness has denied the same. Defendant cannot get
benefit which is a pure typographical mistake. Defendant
has not placed any materials about payment of said
amount. It is difficult to accept the contention of learned
counsel for the appellant in this regard.
18. It is also submission of the learned counsel for
appellant that P.W.1 has admitted the receipt of
Rs.15,000/- through cheque and this was not considered
by the Trial Court. The said submission is also not tenable.
In the written statement, there is no reference about the
payment of Rs.15,000/- to the plaintiff. The question was
very vague. There are no further questions asked by the
defendant that Rs.15,000/- paid to the plaintiff through
cheque is a part of security deposit paid by the defendant.
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When the said fact is absent, on the basis of a vague
answer given by P.W.1, this Court cannot hold that
Rs.15,000/- received by the P.W.1 was a part of security
deposit. It appears that, this point is not urged before the
Trial Court and for the first time, same is raised before this
Court. On this count also, it is not tenable.
19. The learned trial Judge assigning the valid and
proper reasons held that the defendant is liable to pay a
sum of Rs.4,84,000/- to the plaintiff.
20. Admittedly, there is no condition in the
Ex.P.1/Rent Agreement for payment of interest on security
deposit for delayed payment of the same to the plaintiff.
Under such circumstances, without any reason, the
learned trial Judge awarded interest at the rate of 18%
per annum that is also on much higher side. The suit is for
recovery of security deposit. As already stated above, at
the time of obtaining the property on lease, the plaintiff
had paid the security deposit. Admittedly, he had vacated
the premises and handed over the possession to the
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defendant on 10.06.2012. After exchange of notice also
she did not pay the amount. Therefore, plaintiff has filed
the suit which is contested by her and gained time till
2019. Admittedly, the plaintiff is business man and said
amount of Rs.6,50,000/- is withheld by the defendant.
Under these circumstances, defendant has to pay the
interest. It is a commercial transaction, therefore
considering the provisions of Section 34 of the CPC, the
purpose for which it was given; default of defendant to
repay the same and interest charged by the commercial
banks, it is felt that imposing of interest at the rate of
10% per annum, is just and proper.
21. Due to the defaults of the defendant, plaintiff
could not get the relief for about a decade. Therefore, the
plaintiff is entitled for cost of litigation throughout.
22. For the aforesaid discussions, I answer the
point No.1 in the affirmative negative and point No.2
partly in the affirmative and pass the following :
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ORDER
(i) The appeal is partly allowed.
(ii) The appellant shall bear the costs of
litigation of the respondent-plaintiff
throughout.
(iii) The impugned Judgment and Decree dated
01.02.2019 passed by the XXXV
Additional City Civil and Sessions Judge,
Bengaluru (CCH-36) in O.S.No.4598/2013
is modified.
(iv) The defendant/appellant shall pay
Rs.4,84,000/- to the plaintiff-respondent
with interest at the rate of 10% per
annum from the date of the suit till its
realization.
Sd/-
JUDGE
CKK ct-umd
