Kerala High Court
The Secretary vs M/S Gujarath Sidhee Cement Ltd on 3 July, 2025
WA No.61/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
WA NO. 61 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 30.03.2023 IN WP(C) NO.20871
OF 2013 OF HIGH COURT OF KERALA
APPELLANT:
THE SECRETARY
GRETARER COCHIN DEVELOPMENT AUTHORITY (GCDA),
KADAVANTHARA, KOCHI, PIN - 682020
BY ADVS.
SRI.VIPIN P.VARGHESE, SC, GCDA
SHRI.ADARSH MATHEW
SHRI.ANIRUDH G. KAMATH
SMT.CELINE JOHN
SMT.MEHNAZ P. MOHAMMED
SMT.MERLINE MATHEW
SRI.VIPIN P.VARGHESE
RESPONDENT/S:
1 M/S GUJARATH SIDHEE CEMENT LTD.
41/172 GROUND FLOOR, B-BLOCK, KALAYANI APARTMENTS ,
NEAR SUDHEENDRA HOSPITAL, CHITTOR ROAD, KACHERIPADY,
COCHIN 682018, REPRESENTED BY ITS SENIOR VICE PRESIDENT
PRV NAIR
2 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, PIN - 682031
BY ADV SHRI.JOY THATTIL ITTOOP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.07.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.61/2024
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
This intra-court appeal filed under Section 5 of the Kerala High Court
Act, 1958 assails the judgment dated 30.03.2023 passed in WP(C) No.20871 of
2013 whereby the learned Single Judge has allowed the Writ Petition and
directed the present appellant to release the security deposit of Rs.2,40,000/-
to the 1st respondent by treating vacation of the premises as on 09.04.2005,
within a period of one month from the date of receipt of a certified copy of this
judgment, failing which, it will entail interest @ 6% per annum.
2. The appellant is the 1st respondent in the Writ Petition
whereas the 1st respondent is the petitioner, and the 2nd respondent is the 2nd
respondent in the Writ Petition.
3. The brief facts of the case are that 1st respondent is the
lessee of the OS-38 shop room and the appellant is the lessor/owner. As part of
the lease agreement, the 1st respondent deposited Rs.2,40,000/- as security
deposit for indemnifying any loss caused to the appellant. The lease agreement
was terminated at the instance of the 1st respondent. Thereafter, the 1st
respondent had vacated the shop on 02.06.2005. The 1 st respondent started to
demand the entire security deposit of Rs.2,40,000/- from the appellant. The
appellants herein calculated the liabilities towards the 1 st respondent in the
light of the agreement and issued Ext.P7 letter dated 06.07.2005 to the 1 st
respondent stating that the security deposit would be released after deduction
of Rs.31,035/- towards rent arrears up to 10.05.2005 and Rs.4,775/- as civil
liability and also it was clearly mentioned in the letter that the release of
security deposit would be subject to production of receipts of tax remittance to
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the Corporation of Cochin, water charges and electricity charges. However, the
respondent never furnished the same, due to which the appellant was forced to
conclude that the payment of tax, water charges and electricity charges were
never made by the 1st respondent. Therefore, the appellant deducted the said
amount from the security deposit and after deducting the same, the amount
refundable to the 1st Respondent was Rs.21,264/-. Thereafter, various reminder
letters were also sent, but no response from the 1st respondent was received.
4. The 1st respondent approached this Court in WP(C)
No.20871/2013. The learned Single Judge without properly appreciating the
facts on records, passed the judgment dated 30.03.2023 in favour of the 1 st
respondent directing the appellant to release the security deposit of
Rs.2,40,000/- without any deduction. Being aggrieved, the present Writ Appeal
has been preferred.
5. The learned counsel for the appellant contended that the
learned Single Judge erred in coming to the conclusion that there is no
provision in Ext.P1 lease deed to fix the liability of property tax on the tenant
since, Clause II(4) and Clause II(5) of the Ext.P1 lease deed clearly lays down
the condition that the 1st respondent has to bear all the existing and future
taxes/charges payable in respect of the said shop room/ office space and
further, he is also to bear the electric and water charges. The learned Single
Judge also failed to consider the fact that as per the agreement, the security
deposit was taken as security for due payment of rent and for indemnifying the
authority against any loss or damage caused. Therefore, the judgment passed
by the learned Single Judge deserves to be set aside.
6. Per contra, learned counsel appearing for the respondents
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opposed the prayer and submitted that the learned Single Judge has not
committed any error in coming to the conclusion that the property tax is not
included in the agreement and therefore, the same cannot be deducted from
the security deposit. As such, the Writ Appeal is liable to be dismissed.
7. Heard Sri.Vipin P.Varghese, learned counsel appearing for
the appellant, Smt. Uthara A.S., learned counsel appearing for respondent no.1
and Sri.K.P.Harish, learned Sr.Government Pleader appearing for respondent
no.2.
8. As per clause II(4) of the agreement between the parties
dated 12.12.2000 reads thus:
"To bear, pay and discharge all existing and
future taxes, charges, assessment and outgoings
payable in respect of the said shop room/office space".
9. From the above, it is clear that there is a specific provision
that all existing and future taxes etc can be recovered from the lessee, ie, the
1st respondent. The learned Single Judge, without taking into consideration
Clause II(4), came to the conclusion that the lease deed did not contain a
clause fixing the liability of property tax on the tenant. Even the appellants
have not raised electricity bill of consumption till the period of 02.06.2005 and
that the appellants were not able to substantiate the claim towards electricity
charges and corporation charges till the period till 02.06.2005. The appellants
have also not placed on record any bill regarding consumption of electricity
charges by the 1st respondent on 02.06.2005.
10. We are of the considered opinion that when there is a
specific provision in clause II(4) of the agreement with regard to recovery of
taxes, which includes property tax as well, since respondent no.1 is a tenant
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and is also enjoying the property for their own use, consumption of electricity,
provisional tax etc are to be borne by the 1 st respondent only. The learned
Single Judge erred in coming to the aforesaid conclusion. Therefore, the
judgment passed by the learned Single Judge cannot be upheld.
11. Accordingly, the judgment impugned dated 30.03.2023
passed in WP(C) No.20871/2013 is hereby set aside. This Writ Appeal is
allowed.
The appellant shall refund the amount as per Ext.P7 to the 1 st
respondent after deducting the liabilities of the 1 st respondent, as early as
possible, at any rate within a period of four weeks from the date of receipt of a
certified copy of the judgment.
sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
sd/-
SYAM KUMAR V.M.
JUDGE
Nsd
