Madras High Court
M/S.Vijaya Medical And Educational ... vs M/S. R.K.V. Studioss (P) Ltd on 16 May, 2024
C.S.No. 105 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 30.11.2023
Pronounced on : 16.05.2024
CORAM:
THE HONOURABLE MR. JUSTICE A.A. NAKKIRAN
C.S.No. 105 of 2011
M/s.Vijaya Medical and Educational Trust,
Rep.by its Managing Trustee,
Having office at (Old No.180), New No.434,
N.S.K. Salai, Vadapalani,
Chennai – 600 026. .. Plaintiff
Versus
M/s. R.K.V. Studioss (P) Ltd.,
Rep.by its Managing Director,
R.K. Venkatathiri,
Having office at 317-G N.S.K. Salai,
Vijaya Garden, Vadapalani,
Chennai – 600 026. .. Defendant
Prayer: Civil Suit filed under Order IV Rule 1 of Original Side Rules
read with Order VII Rule 1 CPC praying to pass a Judgment and decree:
a) For delivery of vacant possession of the suit property along with
the theatre equipments by the defendant to the plaintiff.
https://www.mhc.tn.gov.in/judis
1/21
C.S.No. 105 of 2011
b) For damages for use and occupation of the suit property at the rate
of Rs. 3,60,000/- per month for the month of November and December
2010 totaling to Rs.7,20,000/-
c) for future damages at the rate of Rs.3,60,000/- per month from
January, 2011 till the delivery of possession,
d) Pass such further or other orders as this Hon'ble Court deem fit and
proper in the circumstances of the case and thus render justice.
For Plaintiff : Mr.T.S. Baskaran
For Defendant : Mr.P. Chandrasekar
----
JUDGMENT
The suit is filed for the following reliefs:
a) For delivery of vacant possession of the suit property along with
the theatre equipments by the defendant to the plaintiff.
b) For damages for use and occupation of the sait property at the rate
of Rs. 3,60,000/- per month for the month of November and December
2010 totaling to Rs.7,20,000/-
c)For future damages at the rate of Rs.3,60,000/- per month from
January, 2011 till the delivery of possession,
d) Pass such further or other orders as this Hon'ble Court deem fit
and proper in the circumstances of the case and thus render justice.
https://www.mhc.tn.gov.in/judis
2. The brief facts of the case of the plaintiff are as follows:
(a) The suit property is known as "Vijaya Garden Deluxe Theater"
situated at M/S. Vijaya Gardens, Opp Vijaya Hospital, Vadapalani, Chennai
26, morefully described in the schedule hereunder. M/S.Vijaya Garden
Theatre, a unit of Vijaya Productions Pvt Ltd., who owned theatre and
equipments intended to lease out the theater with the equipments to a third
party and one Mr.R.K.Venkatathiri, the Managing Director of the
Defendant Company approached the original owner and had taken the
theatre along with the equipments on lease. A lease deed dated 05-10-1998
was executed between the original owner M/s. Vijaya Garden Theater and
Mr. Venkatathiri. As per the terms of the Lease Deed, the lease was for a
period of 7 years commencing from 01-10-1998. The Lessee had paid an
rental advance of Rs.7,00,000/- towards the equipments and Rs.3,00,000/-
towards the theatre. The rent was fixed at Rs.25,000/- per month for first
two months ie., till renovation and other works were to be completed and
thereafter the monthly rent was agreed to be paid at Rs.45,000/- pm., It was
further agreed that an increase of rent of 15% after three years of lease and
20% increase on the 7th year shall be paid by the leasee. The lease entered
between the parties is a composite lease consisting of the land, building,
https://www.mhc.tn.gov.in/judis
theatre and its equipments. The terms of the conditions of the lease deed
dated 05-10-1998 may be read part and parcel of this plaint.
b).Pending the lease period, the original owner M/s.Vijay
Productions Pvt Ltd., had transferred their rights over the suit property ie.
M/s.Vijaya Garden Theatre, in favour of “Vijaya Medical and Educational
Trust”, a Public Trust, the Plaintiff herein. The transfer came into effect
from 1st April 2002. The original owner M/s.Vijaya Productions Pvt Ltd.,
by its letter 17-04-2002 informed the transfer of rights in favour of
Plaintiff and directed the defendant to attorn the tenancy in favour of
Plaintiff. The Plaintiff trust also by its letter 22-04-2002 had informed
about the transfer of rights in their favour and directed the defendant to
attorn their tenancy in their favour. The Managing Director of the
defendant company, Mr. R.K.Venkatathiri, had also by his letter dated 10-
05-2002 had attorned the tenancy in favour of the plaintiff trust and started
paying the rents directly to the plaintiff trust.
c). As per the lease deed on the 7th year of lease, the defendant has
to pay an enhanced rent of 20% on the monthly rent. The defendant before
https://www.mhc.tn.gov.in/judis
the commencement of the 7th year of lease had sent a letter dated 24-04-
2004 to the plaintiff trust requesting not to increase the rent as per the
terms of lease deed, as the defendant alleged to have carried out certain
repair works in the suit property. The defendant had carried out the alleged
repairs without any notice or permission of the plaintiff. The defendant
failed to pay the enhanced rent as agreed after the 3 years of lease and also
in the 7th year of lease and continued to pay the old rent of Rs. 45,000/-.
Further, the defendant without any valid permission and against the terms
of the lease agreement had let out the suit property for film shooting. On
coming to know of the same, the plaintiff trust had immediately sent a
protest letter dated 24-10-2007 to the defendant objecting for using the suit
property for the purposes other than agreed upon in the lease deed. After
the expiry of lease deed, the defendant by its letter dated 12-02-2008 had
requested the plaintiff trust to extend the lease period as the same had
expired as early as on 4-10-2005. The plaintiff trust by its letter dated
13-02-2008 had extended the lease for a period of 5 years from 4-10-2005.
Further, the maintenance charges was enhanced by 10% once in 2 years
instead of once in 3 years as mentioned in Original lease agreement dated
5-10-1998. Further it was informed that all other terms and conditions
https://www.mhc.tn.gov.in/judis
mentioned in the earlier agreement remained same. The letter of plaintiff
trust dated 13-02-2008 may be read in part and parcel of this plaint. The
Plaintiff trust is running Hospitals on various specialties. In the recent
years, there are more number of patients having Heart related problems and
the plaintiff trust finds it difficult to give treatments in the available wards.
The plaintiff trust in considering the requirement of additional space, had
decided to construct a dedicated Heart Hospital to serve the patients.
Accordingly, the plaintiff trust sent a letter dated 7-11-2008 requesting the
defendant to vacate and deliver the suit property to the trust for achieving
their noble cause. The plaintiff trust sent a letter giving three months
advance notice and directed the defendant to deliver possession by
31-01-2009. For the said letter of plaintiff, the defendant sent a reply
dated 21-11-2008 requesting the plaintiff for some time in vacating the suit
property on the ground that he will incur loss by vacating the suit property
immediately and also requested the plaintiff to consider the extension of
the lease period till 4-10-2010. The defendant in his letter had assured that
he will deliver vacant possession of the suit property before the expiry of
the lease period ie. 4-10-2010. The plaintiff trust by its letter dated
01-05-2009 acknowledged the letter of defendant dated 21-11-2008 and
https://www.mhc.tn.gov.in/judis
insisted the defendant to adhere to the promise made in his letter. The
plaintiff trust sent series of letters on various dates reminding the
defendant to deliver possession of the suit property as agreed by their letter
dated 21-11-2008. The defendant received all these letters of the plaintiff,
but had not responded at all. To the shock and surprise to the plaintiff, the
defendant who was keeping quite for all these days and gaining time for
delivery of possession, had sent a letter dated 25-09-2010 in which he had
sought extension of lease for a further period 10 years. The defendant was
fully aware of his period of lease and hence cannot claim any right to
continue by his alleged conduct of effecting improvements. Further the
defendant without the consent of the plaintiff, had constructed small
temples in the suit property and the same is in violation to the terms of the
lease. The plaintiff was never put on notice about the alleged improvisation
of the theatre and the defendant never obtained any consent to do so. The
plaintiff is entitled to seek recovery of possession of the suit property from
the defendant. The property is in the heart of Chennai and it would easily
fetch a monthly rent at Rs.3,60,000/- per month with all its equipments.
The plaintiff is entitled to recover a sum of Rs.3,60,000/- per month as
damages for use and occupation of the suit property from the defendant
https://www.mhc.tn.gov.in/judis
from the date of expiry of the period of lease ie., from November, 2010 till
delivery of possession. Hence, this Suit.
3.The case of the Defendant, as set out in the written statement, is as
follows:-
a). A perusal of the Lease Deed dated 05.10.1998 would reveal
that what was subject matter of the lease was only movables such as
equipment required for running a theatre. The schedule of the property
leased does not pertain to any theatre or immovable property. Had the
lease deed dated 05.10.1998, pertained to immovable property namely a
superstructure leasing a theatre along with equipment embedded in the
property as claimed by the Plaintiff in paragraphs 3 & 9 of the plaint, then
in such a case, certainly the lease deed dated 05.10.1998 required
registration in terms of section 105 of the transfer of Transfer of Property
Act and Section 17 of the Indian Registration Act. However admittedly the
lease is an unregistered instrument. This Defendant submits that the suit is
based solely on the basis that the suit schedule mentioned property was
subject matter of the lease deed dated 05.10.1998 which was initially
https://www.mhc.tn.gov.in/judis
executed for a term of 7 years commencing from 01.10.1998 and further
extended for a further period of 5 years with effect from 04.10.2005. In as
much as the suit is based an unregistered lease deed, the suit is not
maintainable in law and is liable to be dismissed in this short ground as
well.
b)This Defendant further submits that since he suit property pertains
to a superstructure with machinery embedded, notice under Section 106 of
the Transfer of Property Act is mandatory in order to maintain the suit. The
failure in the part of the Plaintiff to issue a mandatory notice as required
under Section 106 of the Transfer of Property Act, renders the suit liable to
be dismissed at the very threshold itself. Further, the Plaintiff is not the
owner of the land comprised in Old Day No.170, New Dew No.317-G,
NSK Salai, Vadapalani belongs to the S.M.M. Mohideen Wakf-Al-Aulad
Estate and the Plaintiff was only a lessee under the S.M.M. Mohideen
Wakf-Al-Aulad Estate. The lease in favour of the Plaintiff was in fact
invalid as it was contrary to the express terms of the Wakf Deed. In any
event, the property described in the schedule appended to the lease deed
dated 05.10.1998 only pertains to movable and not any superstructure or
https://www.mhc.tn.gov.in/judis
immovable property as claimed in paragraph 5 of the plaint. Even
assuming though not conceeding that the lease deed dated 05.10.1998
pertained to immovable property, the fact remains that the lease deed dated
05.10.1998 was an unregistered instrument and as such cannot be looked
into by the Hon'ble Court, in view of the legal prohibition contained in
section 49 of the Registration Act. It is further submitted that the schedule
mentioned in the lease deed dated 05.10.1998 and the suit schedule
mentioned property drastically differ. The Plaintiff and its predecessor in
title being fully conscious of the fact that it was not the owner of the land
had intentionally omitted to include the land, presently described in the
suit schedule in the schedule appended to the lease deed dated 05.10.1998.
c). The suit schedule property was never owned by the
Plaintiff or its predecessor-in-title. The predecessor-in-title of the suit
schedule mentioned property had falsely held out that it was the owner and
thereby induced this Defendant to execute the lease deed dated 05.10.1998,
the Plaintiff is guilty of the gross misrepresentation and suppression of
facts. It is incorrect to state that this Defendant carried out repairs without
any notice or permission of the Plaintiff. The Plaintiff and its predecessor
https://www.mhc.tn.gov.in/judis
in title had full knowledge of the extensive modifications, constructions
and repair work executed by the Defendant. At no point of time had the
Plaintiff raised any protest against the action of the Defendant. In like
manner, there is no expression prohibition in the lease deed against
shooting being under taken in the suit property. That being so the Plaintiff
cannot now contend that the Defendant had violated the terms of the lease.
When the lease deed provides for recording / dubbing/mixing/re-recording
/ effects etc., shooting is incidental to recording and dubbing and hence
cannot be objected to by the Plaintiff. This Defendant denies having
received any protest letter dated 24.10.2009 and the Plaintiff is put to strict
proof of the same.
d) The Plaintiff Trust has been running its hospital for several
decades. The necessity to expand the hospital capacity could not have
arisen all of a sudden. If the alleged expansion programme of the Plaintiff
is genuine, the Plaintiff certainly would have foreseen the same at the time
of extending the lease on 13.02.2008. It is rather shocking that in a matter
of a few months, the Plaintiff suddenly felt the need to expand its activities
and required the premises under the occupation of this Defendant. The
https://www.mhc.tn.gov.in/judis
requirement of the Plaintiff is not bonafide and is only a ruse to vacate the
Defendant. Having extended the lease on 13.02.2008 it is not open to the
Plaintiff to call upon the Defendant to vacate the hand over possession of
few months later namely 07.11.2008. 9. It has invested more than 15
Crores of rupees in updating and replacing the equipments required for its
business activity. The Plaintiff is fully aware of all the modifications and
changes effected by this Defendant at its own costs. The Defendant had
invested huge amounts in order to improve its technology and hope to
recoup its investment over a period of time. It is entitled to remain in
possession until it recovers all its investments made at its own expenses
and it is legally entitled to continue in possession especially when the lease
deed dated 05.10.1998 pertains only to movables and not any immovable
property. The said theatre has not been specifically mentioned in the lease
deed. There is no reference to any survey number nor extent of land or the
dimensions of the superstructure. In the absence of any material details
pertaining to the property, the Plaintiff is not entitled to claim something
that is not at all referred to nor described in the lease deed. The claim of
the Plaintiff that it requires the premises for its expansion activity lacks
bonafides.
https://www.mhc.tn.gov.in/judis
e) The Plaintiff's claim for damages at the rate of R.3,60,000/- per
mensum is exorbitant and highly excessive. It is an admitted fact that in
the year 2008 the Plaintiff had voluntarily fixed the rent at Rs.45,000/- per
mensum. Thus it is not open to the Plaintiff to claim an extravagant sum of
Rs.3,60,000/- which amounts to eight times that the rent fixed by the
Plaintiff itself. Such a huge increase is not at all warranted and has no
nexus to the prevailing market rent in the locality. The Defendant further
submits that the equipments leased out to it are all out dated and cannot be
used in the Cinema and music industry. Further, it had to replace all the
equipments leased by the Plaintiff in order to be in tune with modern
technology in a highly competitive field. It is further submitted that in
paragraph 9 of the plaint it is alleged that the lease expired on 04.10.2010
while in paragraph 10 it is claimed that the lease period is November 2010.
The Plaintiff itself is not certain of the date expiry of the lease. The
Defendant is only liable to pay the existing rent in the absence of any valid
determination of the lease. Further, it has made several modifications and
new construction. At present there are in existence 5 studios as against the
one originally available. This Defendant cannot seek to take advantage of
the huge investments and improvements made by the Defendant at its costs
https://www.mhc.tn.gov.in/judis
and unilaterally seek for recovery of the property. This Defendant further
submits that the Plaintiff had tacitly agreed to renew the lease for a further
period of 5 years as this Defendant had initially sought for a renewal for a
period of 10 years. The Plaintiff on the contrary granted a 5 year then
renewal with effect from 04.10.2005 with a promise for an extension for a
further period of 5 years. Acting on the promise made by the Plaintiff this
Defendant had invested huge amounts in modernising the studio. There is
no cause of action for the usit and same is liable to be dismissed.
4. In the pleadings of the parties, the following issues were framed:-
1. Whether the defendant has forfeited his right as a
tenant by denying the title of the plaintiff in the written
statement?
2. Whether the defendant is not a lessee of the suit
property?
3. Whether the notice under section 106 of the Transfer
of Property Act is mandatory for filing this suit?
4. Whether the plaintiff not entitled to recover
possession of the suit property since the lease deed is
unregistered?
5. Whether the defendant had violated the terms of the
lease and whether the defendant had carried out modification
and expansion over the suit property with the knowledge of
the plaintiff?
https://www.mhc.tn.gov.in/judis
6. Whether the plaintiff is entitled to recover damages
for use and occupation at Rs.3,60,000/- per month with
interest from the defendant?
7. Whether the plaintiff is entitled to recover possession
of the suit property?
8. To what other reliefs the parties entitled?
5. On the side of the Plaintiffs, Ex.P1 to Ex.P17 were marked
and PW.1 was examined. Neither any witness was examined nor
documents were marked on the side of the Defendant.
6. Heard both sides and perused the material available on
record.
Issue Nos.1 to 7:
7.The learned counsel for the plaintiff would submit that the
defendant by letter dated 21.11.2008 (Ex.P10) undertook to vacate the
tenanted premises on or before 04.10.2010. However, the defendant failed
to vacate the said premises and instead the defendant contested the suit.
Therefore, pending the suit, the plaintiff filed an application No.5221 of
https://www.mhc.tn.gov.in/judis
2014 seeking for Judgment and Decree based on admission of the
defendant and A.No.5220 of 2014 seeking the direction to pay a sum of
Rs.1,54,35,000/- being the arrears for the use and occupation of the suit
property from November 2010 to July 2014 and continue to pay the sum of
Rs.3,60,000/- per month. While the application No.5221 of 2014 was
allowed by order dated 27.06.2016 granting a decree for delivery of the
possession in favour of the plaintiff, A.No.5220 of 2014 was dismissed.
Being aggrieved, the defendant has preferred an Appeal in OSA No.43 of
2017 against the order dated 27.06.2016 made in A.No.5221 of 2014. The
Hon'ble Division Bench dismissed the said appeal by Judgment dated
23.11.2017. Subssequenlty, based on the decree passed in A.No.5221 of
2014 dated 27.06.2016, the plaintiff filed E.P. No.136 of 2016 for delivery
of possession. In the said E.P., the plaintiff took the delivery of the suit
premises on 11.07.2018.
8. The learned counsel for the plaintiff would further submit
that the defendant failed to pay the rent from November 2010 till vacating
the suit premises. Therefore, the plaintiff seeks the direction to the
https://www.mhc.tn.gov.in/judis
defendant to pay the arrears of rent. Thus, the plaintiff seeks the relief as
prayed for.
9. The learned counsel for the defendant would submit that in
view of the Judgment and Decree dated 27.06.2016, passed in A.No.5221
of 2014, the plaintiff took the delivery of the tenanted premises. Further,
the defendant has invested more than 15 Crores of rupees in updating and
replacing the equipments required for its business activity. The Plaintiff is
fully aware of all the modifications and changes effected by this Defendant
at its own costs. The Defendant had invested huge amounts in order to
improve its technology and hope to recoup its investment over a period of
time. Hence, the defendant is entitled to adjust the said amount with the
payable arrears of rent to the plaintiff.
10. The learned counsel for the defendant would further
submit that in the year 2008 the Plaintiff had voluntarily fixed the rent at
Rs.45,000/- per mensum. Thus, he seeks to dismiss the suit.
https://www.mhc.tn.gov.in/judis
11. On a perusal of the records and the submission of the
learned counsel on either side, it is seen that the plaintiff took the delivery
of the suit premises on 11.07.2018 by virtue of filing E.P. No.136 of 2016.
Hence, now, the Issue No. 8 is alone to be decided by this Court since the
issue Nos.1 to 7 have already been decided by this Court in both the
Applications filed by the plaintiff.
Issue No.8:
12. There is no any oral and documentary evidence on the side
of the defendant to prove that they have paid the rent to the plaintiff till the
occupation of the suit premises. Hence, the plaintiff is entitled to claim the
rent from November 2010 till vacating the premises ie. July 2018 since the
rent said not to have been paid by the defendant as fixed by it. ie.
Rs.45,000/- per month.
13.In view of the above, the defenant is directed to pay the
arrears of rent at the rate of Rs.45,000/- per month from November 2010
till July 2018 to the plaintiff. Hence, the plaintiff is entilted to receive the
arrears of rent along with interest @ 9% p.m.
https://www.mhc.tn.gov.in/judis
14. Accordingly, the suit is decreed to the aforesaid extent. No
costs.
16.05.2024
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Lbm
Witnesses examined on the side of the plaintiff:
PW1 :M.Thirumalai Nambi
PW2 :Mr.P.Kannan
Witnesses examined on the side of the defendant:
Nil
Exhibits produced on the side of the plaintiff:
Ex.P1 :Photocopy of the lease deed dated 05.10.1998. (Subject to objection
raised by the defendant)
Ex.P2 :Photocopy of the letter dated 17.04.2002 sent by Vijaya Production
to the defendant. (Subject to objection raised by the defendant)
Ex.P3 :Photocopy of the letter datd 22.04.2002 sent by the plaintiff to the
defendant. (Subject to objection raised by the defendant)
Ex.P4 :Photocopy of the letter dated 10.05.2002 by the defendant to the
plaintiff.
Ex.P5 :The letter dated 24.04.2004 written by the defendant to the plaintiff.
https://www.mhc.tn.gov.in/judis
Ex.P6 :The office copy of the letter dated 24.10.2007 by the plaintiff to the
defendant. (Subject to objection raised by the defendant)
Ex.P7 :The letter dated 12.02.2008 sent by the defendant to the plaintiff.
Ex.P8 :The office copy of letter dated 13.02.2008 by the plaintiff to the
defendant. (Subject to objection raised by the defendant) defendant.
(Subject to objection raised by the defendant)
Ex.P9 :The office copy of letter dated 07.11.2008 by the plaintiff to the
defendant. (Subject to objection raised by the defendant)
Ex.P10:The lettter dated 21.11.2008 by the defendant to the plaintiff.
Ex.P11:The letter dated 01.05.2009 by the plaintiffs to the defendant.
Ex.P12:The letter dated 26.02.2010 by the plaintiffs to the defendant.
Ex.P13:The letter dated 23.09.2010 by the plaintiffs to the defendant.
Ex.P14:The letter dated 30.06.2010 by the plaintiffs to the defendant.
Ex.P15:The letter dated 25.09.2010 by the defendant to the plaintiff.
Ex.P16:The copy of the resolution dated 20.02.2012 by the plaintiff
company authorising me to depose the evidence in this case
Ex.P17:Authorization letted dated 10.08.2022 along with the Board
Resolution dated 09.08.2022. (Ex.P17 is marked as requested by the
learned counsel for the plaintiff mentioned as Ex.P17.)
Exhibits produced on the side of the defendant:
Nil
16.05.2024
https://www.mhc.tn.gov.in/judis
A.A. NAKKIRAN, J
Lbm
Pre-Delivery Judgment in
Delivered on
16.05.2024
https://www.mhc.tn.gov.in/judis
