Madras High Court
M/S. Jayalakshmi Estates vs Access Atlantech Edutainment ... on 22 August, 2023
C.S.No.796 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.08.2023
CORAM:
THE HON'BLE MS.JUSTICE P.T.ASHA
C.S. No.796 of 2015
M/s. Jayalakshmi Estates,
Rep by its Managing Partner,
Mr.B.Ramesh Kumar,
Old Door No.8, New Door No.29,
Jayalakshmi Estates,
Haddows Road,
Chennai 600 006 ...Plaintiff
vs.
Access Atlantech Edutainment (India)ltd.,
Rep by his Chief Operating Officer,
Mr.Ratish Babu,
“Nijapadam”,
6/9, Damodaran Street,
Mayor Ramanathan Salai,
Chetpet,
Chennai 600 031 ... Defendant
PLAINT FILED UNDER ORDER IV Rule 1 of O.S.Rules
read with Order VII Rule 1 of C.P.C praying to pass a judgment and
decree against the defendant:
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C.S.No.796 of 2015
a) Directing the defendant to pay a sum of Rs.1,38,24,941.19
(Rupees one crore thirty eight lakhs twenty four thousand nine
hundred and forty one and nineteen paise only) to the plaintiff which
sum is due to the plaintiff as on date of filing of this suit together
with 24% interest on the said sum till the realization of the same in
favour of the plaintiff and;
(b) To award costs of the suit.
For Plaintiff : Mr.V.Chandraprabu
For Defendant : Mr.Thomas T.Jacob
JUDGMENT
The suit is filed for the following reliefs:
(a) Directing the defendant to pay a sum
of Rs.1,38,24,941.19 (Rupees one crore thirty
eight lakhs twenty four thousand nine hundred
and forty one and nineteen paise only) to the
plaintiff which sum is due to the plaintiff as on
date of filing of this suit together with 24%
interest on the said sum till the realization of
the same in favour of the plaintiff and;
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C.S.No.796 of 2015
(b) To award costs of the suit.
2.The plaintiff had entered into a registered Lease Deed dated
09.05.2008 with the defendant under which they had leased out the
properties situate in 4th and 6th floors of Door No.29 (Old No.8,
Jayalakshmi Estate, Haddows Road, Chennai 600 006). The lease
was for a non residential purpose and the monthly rent was a sum of
Rs.4,83,000/- payable on or before 07th of English Calender month
in advance. In addition to the monthly rental, the defendant was
liable to pay the monthly maintenance of Rs.3.35/- per sq.ft, which
was subsequently enhanced to Rs.5/- per sq.ft with effect from
01.01.2010. Apart from these payments, a revised tax was also
payable. The lease was initially for a period of 3 years commencing
from 03.05.2008 to 02.05.2011 with no rental clause. The lease
deed further provided that in the event of the rents not being paid in
time, the plaintiff could levy interest at 24% on the rental arrears
from its due date till the date of realization.
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C.S.No.796 of 2015
3.It is the case of the plaintiff that the defendant was highly
irregular in the payment of both the monthly rental as well as the
maintenance charges. Just prior to the expiry of the lease period, the
plaintiff had sent a letter to the defendant requesting them to deliver
the vacant possession of the demised premises on or before
02.05.2011 and to clear the rental arrears and maintenance charges
which was a sum of Rs.25,34,970/- as on 27.04.2011. The
defendant had paid the aforesaid sum on 28.05.2012, but failed to
vacate the demised premises and hand over the vacant possession to
the plaintiff. In addition, the defendant stopped paying the rent and
the maintenance charges as also the service tax from the months of
May 2011 to September 2012.
4.In the light of the continuing arrears, the plaintiff had filed
an eviction petition against the defendant in R.C.O.P.No.1941 of
2012 on the file of the XII Small Causes Court, Chennai seeking
eviction on the ground of wilful default and two other grounds. In
the said rent control proceedings, the plaintiff had taken out an
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C.S.No.796 of 2015
interim application under Section 11(1) r/w Section 11(4) of the
Tamil Nadu Building (Lease and Rent Control) Act, 1973, for a
direction to the defendant to deposit the arrears of rent, maintenance
charges, and service tax totalling a sum of Rs.1,11,64,094/- together
with interest at 24%, totalling a sum of Rs.26,79,382/- in all,
totalling a sum of Rs. 1,38,43,472/-.
5. The defendant had entered appearance and filed a counter
denying his liability to pay the enhanced maintenance charges from
Rs.3.25 per sq.ft to Rs.5 per sq.ft with effect from January 2010.
The other amounts were not disputed by him. Since there was no
contest by the defendant with reference to the remaining amount and
as there was no proof to show that the defendant was only liable to
pay a sum of Rs.3.25sq.ft to Rs.5 per sq.ft as maintenance charges,
the Rent Controller had allowed the application and directed the
defendant to deposit a sum of Rs.1,22,66,863.56/- towards the
arrears of rent, maintenance charges and service tax for the period
May 2011 to August 2012 on or before 10.07.2013. The learned
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C.S.No.796 of 2015
Rent Controller had not accepted the plaintiff's case on the ground
that the plaintiff had failed to prove that the maintenance charges
was enhanced to Rs.5 per sq.ft. per month from Rs.3.25 per sq.ft
and therefore, had calculated the maintenance charges at Rs.3.25 per
sq.ft. per month. Although the defendant had suffered an order,
they had not sought to make the payments and therefore, the Rent
Controller by order dated 18.07.2013 had directed the defendant to
vacate and hand over the vacant possession of the property on or
before 07.10.2013.
6.Meanwhile, the defendant had vacated and handed over the
vacant possession of the property to the plaintiff on 07.10.2013.
However, they had not cleared the arrears and as on September
2013, the defendant was due and owing a sum of Rs.2,23,94,125/-
which constituted the arrears of rent from May 2011 to September
2013. The plaintiff would further submit that since the Rent
Controller had not accepted the claim of Rs.5/- per sq.ft with
reference to the maintenance charges, they were restricting the claim
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C.S.No.796 of 2015
only to Rs.3.25/- per sq.ft in respect of the premises and has
therefore restricted their claim to arrears of rent and other charges
for the period commencing from September 2012 to September 2013
at Rs.1,38,24,941.19/- .
7.It appears that the defendant had filed a written statement
with the delay of 80 days in representing the written statement and to
condone the delay of 46 days in filing the written statement in
A.Nos.7473 and 7474 of 2018. The learned Master, by order dated
28.02.2019, had dismissed these applications stating that the written
statement had to be filed on or before 120 days and cannot be filed
thereafter. The matter was listed before this Court and thereafter it
appears that the defendant had filed a petition to condone the delay
of 876 days in filing the written statement and to accept the same
before the Court. By order dated 05.07.2019, this application was
dismissed and the matter was fixed for trial. The Court had
permitted the defendant to cross examine the witness. The plaintiff
had examined their managing partner, B. Ramesh Kumar, as P.W.1
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C.S.No.796 of 2015
on 11.07.2019, through whom, the proof affidavit was filed into
court, and the chief examination and marking of Ex.P1 to P3 were
done. Thereafter, it appears that the said B.Ramesh Kumar had
passed away and an application was moved to eschew his evidence
and permit his son, R.Rajiv Bolla to depose before this Court. By
order dated 02.12.2020, this Court had passed an order stating that
P.W1 had been examined and Exs.P1 to P3 had been marked and
therefore, the Court was not inclined to eschew the evidence and
observed that the orders could be passed in the application only after
examining the evidence that would be adduced by the further
witnesses of the plaintiff. Thereafter, the records would show that
the plaintiff had taken out an application in A.No.456 of 2021
seeking a direction to file the additional documents, which were the
Certificate of Lease dated 09.05.2008, Authorisation copy of the
Partnership Deed dated 01.04.2020 and the Authorisation Letter
dated 31.12.2020. By order dated 02.03.2021, the Court had
allowed the documents to be received in evidence subject to
admissibility, proof and relevancy and the matter was once again
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C.S.No.796 of 2015
sent back to the learned Additional Master-II for continuation of
evidence. P.W2 was examined and Exs. P4 to P6 were marked.
8.The only issue that arises for consideration is whether the
plaintiff is entitled to recover the money as claimed by them.
9.The learned counsel on both sides have filed their written
arguments. The plaintiff has reiterated the contents of the plaint and
had argued that in the Rent Controller Proceedings itself, the
defendant had admitted the lease between themselves and the
plaintiff and to pay the monthly rental of Rs.4,83,000/- apart from
the maintenance charges at Rs.3.25 per sq.ft together with service
tax. It is also argued that the order passed by the Rent Controller
had attained finality since there was no appeal filed by the
respondent against the said order.
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C.S.No.796 of 2015
10.Per contra, the learned counsel appearing on behalf of the
defendant that though in his written statement had contended that the
plaintiff was not entitled to claim the rental arrears, the maintenance
charges and service tax and also put forward a contention that the
plaintiff had failed to prove that the defendant had occupied their
premises from September 2012 to September 2013. They had also
contended that Ex.P2 which is the decree in M.P.No.407 of 2012 in
R.C.O.P.No.1941 of 2012 is not a proof of the defendant's
occupation of the premises. They had also questioned the veracity
and validity of Ex.P3-letter evidencing the handing over of
possession by the defendant to the plaintiff. The defendant had once
again questioned the basis on which the rent, maintenance charges,
service tax etc., are claimed, when according to the defendant, these
contentions have not been proved by the plaintiff. They had also in
their written arguments contended that there is no document to prove
the service tax has been paid by the plaintiff to the Government and
that no document has been marked to prove the payment of service
tax apart from interest at 24%. However, from the oral arguments,
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C.S.No.796 of 2015
the only argument that had been put forward by the learned counsel
for the defendant was that the Commercial Division does not have
the jurisdiction to entertain the suit since there is no subsisting
agreement between the plaintiff and the defendant, as even
according to the plaintiff, the period of lease had come to an end on
02.05.2011. Therefore, he would submit that there was no
agreement on the date of filing of the suit.
11.Heard the learned counsels on either side and perused the
materials available on record.
12.The oral arguments of the defendant's counsel cannot be
countenanced for the simple reason that the plaintiff is basing his
claim on the Lease Agreement dated 09.05.2008 (Ex.P6) and the
eviction order that has been passed against the respondent as
evidenced by Exs.P1 and P2. Section (2) (i) (c) (vii) of the
Commercial Courts Act, 2015 would clearly apply to the case on
hand as there is an agreement with reference to the immovable
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C.S.No.796 of 2015
property and the immovable property is used as a commercial
building. Admittedly, the defendant has vacated the premises on
07.10.2013 as evidenced by the learned counsel for the defendant in
Ex-P3 letter dated 07.10.2013 evidencing the handing over the
vacant possession to the plaintiff by the defendant. The Rent
Controller has rejected the plaintiff's claim that the monthly
maintenance charges was a sum of Rs.5/- per sq.ft and had only
granted maintenance charges at Rs.3.25 per sq.ft per month which is
the basis on which the plaintiff had calculated the suit claim. The
defendant has neither got into the box to refute the contention of the
plaintiff nor have been able to elicit any admissions from P.W2 in
cross in their favour. From Exhibits P1, P2, P3 and P6, it is clearly
evident that the defendant has been put in possession of the property
as a lessee and the monthly rent payable was a sum of Rs.4,83,000/-
for both floors together with maintenance charges of Rs.3.25 per
sq.ft per month and service tax as well. The defendant has
committed a default in the payment of these amounts and suffered an
eviction order. Therefore, the issues are answered in favour of the
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C.S.No.796 of 2015
plaintiff. Accordingly, the suit is decreed with costs.
22.08.2023
srn
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C.S.No.796 of 2015
P.T.ASHA, J.,
srn
C.S. No.796 of 2015
22.08.2023
https://www.mhc.tn.gov.in/judis
