THE HON'BLE SMT.JUSTICE T.MEENA KUMARI SECOND APPEAL . No. 12 of 2010 Order: This Second Appeal is directed against the judgment and decree dated 3.8.2009 made in A.S. No 56 of 2006 on the file of the I Additional Chief Judge, City Civil court, Secunderabad whereby and whereunder the learned Chief Judge confirmed the judgment and decree dated 10.11.2003 in O.S. No. 162 of 2001 on the file of the III Senior Civil Judge, City Civil Court, Secunderabad. The facts in brief are that the appellant filed the suit in O.S. No. 162 of 2001 for recovery of an amount of Rs. 1,65,000/- together with interest at 2% p.m. According to the appellant, it is engaged in the business of servicing and marketing of spare parts in automobiles, with their show room and stores having been located at Plot No. 8, Begumpet Main Road, Secunderabad and their workshop at Patigadda, Secunderabad. It is further stated that it had taken the cellar portion of the premises in question comprising of ground floor and first floor and the cellar portion, at Plot No. 8, Begumpet, on lease, exclusively for the purpose of keeping their stores and spares. It also entered into a Lease Deed dated 10.12.1996 and as per the said lease agreement, the monthly rent was fixed at Rs.17,500/-with an enhancement of 15% from 1.8.1999 and the period of lease was set out for five years from 1.8.1996. The electricity and water charges for the said premises have to be paid by the appellant-plaintiff as the lessee and the maintenance of the demised cellar portion was of the respondent, which the respondent grossly neglected to maintain, resulting in huge losses to the appellant-plaintiff due to leakage and the subsequent submersion in water due to deluge. Appellant further stated that in the month of August, 1997 even though it brought to the notice of the respondent about the heavy leakage of water, seepage through walls, water dripping from the ceiling and water logging at the cellar, which resulted in heavy damage to the stores and spares kept therein, the respondent did not take any action. It further alleged that on 22 and 23rd of August, 2000 due to heavy rainfall in Hyderabad and Secunderabad, the entire demised cellar premises was inundated with heavy inflow of water and the entire stocks, spares, records and the account books which were kept in the stores got submerged in the water, causing heavy damage to the tune of Rs.55.00 lakhs. The appellant immediately lodged complaints with the Inspector of Police, Begumpet; Mandal Revenue Officer, Balanagar Circle and the Commercial Tax Officer, Begumpet Circle and also with the respondent- defendant as the lessor of the said premises. When no action was taken, the appellant issued a notice dated 15.1.2000 to the respondent-defendant informing that it is vacating the said premises w.e.f. 1.11.2000 and asked for refund of Rs.1,50,000/-deposited with the respondent-defendant. The respondent sent a reply stating that the lease had to be continued till 31.7.2001 and the appellant shall continue to make the payment of monthly rent till then. Appellant further averred that the respondent intended to adjust the entire deposit amount towards lease and other expenses. Appellant further stated that the premises were rendered impossible for any use and occupation and since the respondent declined to repay the deposit amount, it filed the suit for recovery of amount. While opposing the claim of the appellant, the respondent filed a written statement stating that the suit as filed is not maintainable either on law or on facts, and admitted that the appellant obtained the cellar portion of the suit premises on rent and executed a lease deed on 10.12.1996 for a period of five years, commencing from 1.8.1996 and agreed to pay the rent of Rs. 17,500/- per month with enhancement of rent by 15% from 1.8.1999. He further stated that as per Clause 7 of the lease deed, the lessee agreed and undertook to keep the schedule premises in neat and habitable condition and it shall alone attend the minor repairs, white washing, colouring of the premises etc. While admitting that there was a heavy down pour on 23.8.2000, the respondent stated that the storm water not only entered the premises in question, but also many other premises and the respondent is in no way responsible for the loss caused to the appellant. He also denied the allegation that there was leakage, seepage, dipping of water from the ceiling and water logging in the cellar. He further stated that he never received any complaint from the appellant with regard to those aspects, except after 23.8.2000. He also denied the claim of the appellant that it sustained loss to the extent of Rs.55.00 lakhs and stated that same is without any basis. He further stated that though the storm water entered the premises in question, it however, receded within a few hours and subsequently, the appellant put the properties to use. The appellant without vacating the premises, has kept the same under lock and key. When the property is under the custody of the appellant, the appellant is liable to ay the rents subsequent to October, 2000 and stated that the appellant is not compelled to remain in possession of the premises. He further stated that he has not retained any money with him and after adjusting the amount payable by the appellant and after verifying the electricity bills, whatever amount is due and payable will be refunded to the appellant. He further stated that in the agreement, there is no stipulation about payment of interest on the deposit made by the appellant. Basing on the above pleadings, the trial Court framed the following issues for trial: (1) Whether the plaintiff is entitled to the suit claim and interest as prayed for ? (2) To what relief ? During the course of the trial, on behalf of the appellant, P.W.1 was examined and Exs.A1 to A10 were marked. On behalf of the respondent, though D.W.1 was examined, however, no oral evidence was adduced. The trial Court after considering the oral and documentary evidence on record, dismissed the suit filed by the appellant. Aggrieved, the appellant carried the matter in appeal before the lower appellate Court and the lower appellate Court, by the order impugned in this appeal, dismissed the appeal with costs. Assailing the same, the appellant, filed the second appeal. Heard the learned counsel for the appellant and perused the impugned order. There is no dispute about the fact that the respondent is the owner of the premises in question and that he entered into a lease agreement with the appellant on 31.8.1999 for leasing out the premises on a monthly rent of Rs. 17,500/- with enhancement of rent at 15% with effect from 1.8.1999. There is also no dispute about the fact that there were heavy rains in the twin cities of Hyderabad and Secunderabad on 22.8.2000 and 23.8.2000, which occasioned the rain water to storm into the premises. There is equally no dispute about the fact that the appellant issued a letter dated 15.10.2000 stating that it would be vacating the premises by 1.11.2000 and also demanded for refund of the amount of Rs.1,50,000/-. It is seen from the record that in spite of sending the said letter, the appellant did not vacate the premises and instead filed the aforementioned suit. It is also seen from the record that pursuant to the order passed in I.A. No. 481 of 2001, the appellant handed over the keys to the respondent on 27.8.2001 and since it is in occupation of the premises till that date, it is liable to pay the rent for the period for which it is in occupation. Admittedly, there is no evidence on record to show that the appellant vacated the premises on 31.10.2000. In the circumstances, the claim of the appellant that it is entitled for refund of Rs.1,50,000/- along with interest is not acceptable. The trial Court as well as the lower appellate Court while taking the aforesaid aspects into consideration rightly found that the appellant is found to be owing more than the amount which is deposited by the appellant and accordingly declined to grant the reliefs sought for by the appellant. In the circumstances, I do not find any reason to interfere with the judgment and decree passed by the trial Court in O.S. No. 162 of 2001, as confirmed by the lower appellate court in A.S. No.56 of 2006. In view of the concurrent findings of fact recorded by the trial court as well as the lower appellate court, I do not find any reason to interfere with the impugned orders. Further, there is no question of law, much less any substantial question of law arises for consideration in this second appeal. The second appeal fails and it is accordingly dismissed. No costs. ___________________ T.MEENA KUMARI,J Date: 24.9.2010 pnb