IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 AS.No. 421 of 1994(B) --------------------------- OS.125/1992 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT(S): DEFENDANT: ----------------------------------------- RICHARD FLETCHER, SON OF JAMES FLETCHER, EMBARCATION JETTY, WILLINGDON ISLAND, COCHIN-3. BY ADV. SRI.BABU KARUKAPADATH, SRI.A.SHAFFEEK. RESPONDENT(S): PLAINTIFF: ----------------------------------------- THE BOARD OF TRUSTEES OF COCHIN PORT TRUST, REPRESENTED BY ITS CHAIRMAN, WILLINGDON ISLAND, COCHIN-3. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 06/11/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ A.S.No.421 of 1994-B ---------------------------------------------- Dated, this the 6th day of November, 2009 J U D G M E N T K.M.Joseph, J. Appellant is the defendant. Respondent/plaintiff instituted the suit for a decree of Rs.1,09,846/- with future interest at 15 percent. The suit stands decreed, but, with interest at 12 percent from the date of the suit till the date of realisation. 2. The case of the respondent/plaintiff in brief is as follows:-- During 1978 the appellant was given 15 cents of land at Willingdon Island for constructing building and doing business. A lease deed was executed on 24.3.1980 incorporating the terms and conditions. The amount of Rs.1,09,846/- comprised of arrears of rent, sub-lease levy, water and electricity charges. Penalty interest was also charged. Appellant filed written statement. Issues were raised. The evidence consisted of Exts.A1 to A11. There was no oral evidence. 3. Learned counsel for the appellant would contend before us that there is no basis for decreeing the amount A.S.421/1994 -2- sought under the head sub-lease levy. The finding of the court below in this regard is as follows: “.....As per Ext.A10 lease deed, the defendant is bound to pay sublease levy, in cases where subletting is made. In the written statement, paragraph 4 the defendant alleges that he has not violated any of the terms and conditions of the lease deed or the rules and regulations. He further alleged that he has not sublet or assigned any portion of the building without the sanction of the plaintiff. According to him, he has not inducted any person without the consent of the plaintiff. The plea in paragraph 4 of the written statement means he has sublet portions of the building with the written consent of the plaintiff. Hence duty is on the defendant to produce the written consent given in this case. Further, in paragraph 6 the defendant has a case that the letters sent by the plaintiff, Ext.A1, A3, A4, A5, A6, A7 and A8 were issued without any legal or factual basis. In this paragraph he would submit that the sublessees as mentioned in Ext.A6 are not sublessees, but those are the various kinds of businesses, carried on by him with his own employees. According to him, the FAX alone was placed in the alleged area as a sublessee. There is no business under the name and style “Trans India International Cafe Syndicate”. The subletting in favour of Cochin Marine Suppliers and Sai Shipping Company is admitted, but according to the defendant, it is done with the consent of the plaintiff. The area given to M/s.Sai Shipping Company is also disputed. But sublease levy of Rs.16,148/- on account of Sai Shipping Company is specifically denied stating that the area occupied by them is lesser in extent. Having stated that the various business concerns mentioned in Ext.A6 are the business A.S.421/1994 -3- concerns run by the defendant, the defendant has to establish the same. If portions are sublet with the written consent of the plaintiff the necessary consent letter also must be available with the defendant. Nothing was produced to substantiate his claim.” 4. Learned counsel for the appellant would submit that this is a case where the court below has not construed the pleading correctly and all that is contended is that the appellant did not sublet without the written consent. According to him, therefore it means that there is no sublease at all. 5. We are not inclined to accept the said contention. We have already extracted the finding of the court below. We find that the court below is justified on the basis of the pleadings to enter the finding regarding the liability of the appellant to pay sublease levy. Learned counsel then contends that the the court below ought not to have ordered interest at 12 percent. We feel that the appellant can be directed to pay interest at 9 percent instead of 12 percent. Accordingly, the appeal is partly allowed and the suit is decreed for an amount of Rs.1,09,846/- with interest at 9 percent from the date of the suit till the date of realisation. A.S.421/1994 -4- The parties are directed to bear their respective costs in this appeal. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS