1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 274 OF 2005 Janardhan s/o Bhagwantrao Nawale .. APPELLANT VERSUS State Marketing Manager & another .. RESPONDENTS Shri S.S. Choudhari, Advocate for the appellant. Shri R.N. Dhorde, Advocate for respondent no. 1. Respondent no. 2 though served absent. ===== CORAM : R. M. BORDE, J. DATE : 10 th September, 2009 PER COURT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted suit claiming recovery of amount of Rs.89,648/- towards damages. It is the contention of the plaintiff that defendants agreed to occupy the premises owned by plaintiff on rent basis and accordingly offer letter was given on 22-5-1984. Defendants were offered the premises on monthly rent of Rs.2,000/- for a period of five years. It is the 2 contention of the plaintiff that by letter dt. 21-9-1984 defendants accepted the proposal and secured possession of the premises on monthly rent of Rs.2,000/- for a period of five years. Defendants occupied the premises on 15-12-1984. Thus, according to the terms of the agreement reached between the parties, they were to remain in possession for a period of five years. Plaintiff purchased stamp paper of Rs.5/- to get the lease deed executed. However, defendants avoided to execute the document. According to plaintiff, he has spent an amount of Rs.20,000/- for carrying out repairs of the premises as per the conditions put by the defendants. However, defendants vacated the premises on 21-8-1985. Thus, according to plaintiff, defendants have rescinded the contract for no reason due to which plaintiff has suffered loss. The premises were required to be let out to other occupant on monthly rent and plaintiff as such has sustained loss to the tune of Rs.89,648/-. Plaintiff as such claims different of amount which was receivable by him under the terms of the agreement and damages alongwith interest at the rate of 12% per annum. 3 Defendants resisted the claim by filing written statement. According to them, there was no agreement for letting out the premises for a period of five years. It is contended that by letter dt. 21-9-1984 exh. 28, defendants 3 have specifically made clear that the plaintiff has to carry out the repairs such as painting, white-washing, fixtures, furnitures and garage for car parking. According to the defendants, these repairs were not carried out even after they occupied the premises. They were therefore compelled to vacate the premises before expiry of the period. It is further contended by defendants that agreement was in respect of letting out an area to the extent of 1402 sq. ft. However, area actually put in possession was 1,168 sq. ft. The staircase which was required for user of the defendants was also used by other tenants which created inconvenience to the defendants. Defendants thus contend that there being no contract executed at between the parties, plaintiff is not entitled to the relief as claimed for. 4 Trial court after recording evidence led by the parties came to the conclusion that plaintiff has failed to establish his case and as such dismissed the suit. Plaintiff being aggrieved by the decision rendered by the trial court, preferred Regular Civil Appeal no. 572/2000 which came to be heard and disposed of by 1 st Adhoc Additional District Judge, Aurangabad who was pleased to dismiss the same by judgment and decree dt. 24-7-2003. 5 I have perused the judgments recorded by both the courts below and 4 heard arguments advanced by learned counsel for the respective parties. Learned counsel for the appellant has vehemently contended that in view of the correspondence between the parties placed on record, it is to be inferred that there is agreement of lease between the parties. It is his contention that the defendants without informing the plaintiff have vacated the premises and as such have committed breach of terms of the agreement settled between the parties. As a consequence of vacation of the premises by defendants before expiry of period of five years, loss is caused to plaintiff. It is admitted that the lease document which was required to be executed has not been executed. Reasons demonstrated by both the parties for failure to execute the lease agreement are different. But the fact remains that there was no execution of lease agreement between the parties. Communication on which reliance is placed by plaintiff is also not acceptable. Defendants had asked the plaintiff to carry out certain repairs which according to the defendants, were not carried out by them. Thus, argument advanced by learned counsel for the appellant that there is agreement of lease arrived at between the parties is not acceptable. The courts below have accordingly recorded finding to the effect that there is no contract between the parties and as such, plaintiff is not entitled to the relief claimed for. Learned counsel for the appellant has placed reliance on 5 a judgment in the matter of Kollipara Sriramulu vs. T. Aswatha Narayana reported in AIR 1968 Supreme Court 1028 so also judgment in the matter of Shri Rama Metal Works and others vs. The National Small Industries Corporation Ltd. reported in AIR 1977 Karnataka 24. Judgments cited are of no assistance to the plaintiff for the reason that in the instant matter there is no contract arrived at between the parties. Communication between the parties also is not sufficient to draw an inference that there was agreement of leasing out the premises for a period of five years. No substantial question of law arises for consideration in the appeal. Findings of fact recorded by the courts below need not be interfered with in exercise of powers under section 100 of the Code of Civil Procedure. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa274.05.odt