THE HON’BLE SRI JUSTICE K.C.BHANU CCCA NO.99 OF 2006 AND TR.CCCA NO.218 OF 2007 DATED:13-12- 2010. CCCA 99 OF 2006 Between Abdul Basith … Appellant-Plaintiff And 1.Haribhajan Singh (died by L.R.) Amarjit Singh …Respondent-Defendant Tr.CCCA 218 OF 2007 Between Abdul Basith … Appellant-Defendant And 1.Haribhajan Singh (died by L.R.) Amarjit Singh …Respondent-Plaintiff THE HON’BLE SRI JUSTICE K.C.BHANU CCCA NO.99 OF 2006 AND TR.CCCA NO.218 OF 2007 COMMON JUDGMENT: These two appeals are filed against the common judgment and decree, dated 20-02-2006 in O.S. Nos. 1467 of 2003 and 1904 of 2004, on the file of the VIII Additional Senior Civil Judge, (FTC) City Civil Court, Hyderabad. 2. O.S.No.1467 of 2003 was filed seeking eviction of the defendant from the suit schedule premises bearing Shop No.37, House No.5-8- 512/157/A, Abids Shopping complex, Hyderabad, for recovery of arrears of rent to a tune of Rs.65,880/- and for mesne profits from 01-08-2003 to till the delivery of possession at the rate of Rs.15,000/- per month and for costs. 3. O.S.No.1904 of 2004 was filed seeking direction to the defendant to execute a registered sale deed in his favour as per the oral agreement entered in the first week of November, 2002 by receiving balance sale consideration of Rs.1,00,000/-and alternatively for refund of an amount of Rs.5,00,000/- with interest at 18% per annum and costs. 4. The averments of the plaint in O.S.1467 of 2003 are as follows: The plaintiff represented by his GPA holder Amarjit Singh is the absolute owner of the plaint schedule shop and the defendant is a tenant. On 01- 01-2000 a registered sale deed was executed between the parties to the suit for a period of three years commencing from 01-11-1999 to31-10- 2002. The monthly rent for the schedule premises is Rs.5,500/- exclusive of maintenance charges, electrical and water charges. As per the lease agreement, the rent and hire charges for furniture shall be enhanceable by 10% for every year. If the plaintiff is required the premises, the tenant shall vacate the same within one month as required under Section 106 of the Transfer of Property Act (for short ‘the Act’). The defendant has committed default in payment of rent and hire charges from November, 2002 despite several requests made by the plaintiff. The defendant was due in a sum of Rs.65,880/- towards arrears of rent. The plaintiff is not interested to extend the lease since the premises is required for the computer business of his son. The period of lease was came to an end by 31-10-2002. The plaintiff terminated the lease by issuing a legal notice, dated 24-06-2003 w.e.f. 31-07-2003. The plaintiff demanded the defendant to handover the vacant possession of the premises on or before 01-08- 2003, but he failed to vacate the same. The defendant is in illegal occupation for which, he is liable to pay mesne profits at Rs.15,000/- per month. Hence, the suit. 5. The defendant filed written statement denying the averments in the plaint. It is stated that the defendant paid Rs.4,00,000/- towards security deposit to the plaintiff and obtained acknowledgement. After expiry of lease period, the plaintiff and defendant entered into another lease deed, dated 01-01-2000 for a further period of three years and the rent shall be Rs.5,500/-. After expiry of lease period of three years, the plaintiff offered to sell the suit schedule mulgi to the defendant and the defendant in turn agreed to purchase the same for a consideration of Rs.6,00,000/-. It is orally agreed that security deposit of Rs.4,00,000/- lying with the plaintiff to be treated as advance sale consideration. The defendant paid Rs.1,00,000/- in the month of November, 2002 towards part of sale consideration, but no receipt was obtained as there were good relationships between the parties. The defendant has been demanding the plaintiff to execute the sale deed by receiving balance sale consideration of Rs.1,00,000/-, but plaintiff is postponing the same on one pretext or other. The defendant did not receive any notice got issued by plaintiff. There is no landlord an tenant relationship between him and the plaintiff. There is no cause of action to file the suit and hence, he prays to dismiss the suit. 6. Basing on the above pleadings, the following issues were settled for trial: 1. Whether the plaintiff has got issued legal notice seeking eviction of the defendant from the suit schedule premises and the same has been duly served on the defendant or not? 2. Whether the plaintiff is entitled for the relief of eviction of the defendant from the schedule premises? 3. Whether the plaintiff is entitled for the relief of mesne profits as claimed as prayed for? 4. Whether the defendant possession over the schedule property has become owner by virtue of the oral agreement with the plaintiff in respect of the suit schedule premises as contended by the defendant? 5. To what relief? 7.The averments of the plaint in O.S.1904 of 2004 are as follows: The defendant is the owner of the suit schedule premises and the plaintiff is the tenant of the premises since 1996 and monthly rent is Rs.5,760/- by virtue of lease deed dated 01-10-1996. The plaintiff paid Rs.4,00,000/- towards refundable deposit and defendant passed a separate receipt on 01-10-1996. Subsequently w.e.f. 01-11-1999another registered lease deed was entered on 01-01- 2000 under which fresh lease commences from 01-11-1999 to 31-10-2002 and under the said lease deed, the rent was reduced and the plaintiff was prompt in payment of rents. In November, 2002, the plaintiff approached the defendant to pay th rent on which date, the defendant offered to sell the shop to him as he was in dire need of money. The plaintiff agreed for the same. The sale consideration shall be Rs.6,00,000/- and security deposit of Rs.4,00,000/- shall be adjusted towards advance sale consideration. The plaintiff also paid Rs.1,00,000/- towards part of sale consideration on 11-11-2002, but no receipt was obtained. The plaintiff is always ready and willing to perform his part of contract. He requested the defendant to execute sale deed by receiving balance sale consideration, but defendant is postponing on one pretext or the other. There was specific agreement between him and the defendant that he need not pay the rents from the month of November, 2002 as the plaintiff paid major part of sale consideration. In spite of executing registered sale deed, in terms of the oral agreement, the defendant filed O.S.1467 2003. After receipt of suit summons, the plaintiff approached the defendant and asked him to execute registered sale deed, for which, he refused to do so. Hence, the suit seeking specific performance of oral contract of sale. 8. The defendant filed written statement denying the averments in the plaint. It is admitted that plaintiff deposited Rs.4,00,000/- towards refundable security deposit, which shall be refunded on the termination of tenancy. At no point of time, the defendant agreed to sell the property to the plaintiff. The plaintiff committed default in payment of rent after expiry of lease period. The defendant issued notice terminating the tenancy and demanding him to pay arrears of rent and handover vacant possession on or before 01-08-2003. The plaintiff got managed postal people to return the legal notice unserved. This suit is filed as a counter blast to the suit filed by the defendant. There is no cause of action to file the suit and the plaintiff is liable to pay an amount of Rs.65,880/- towards arrears of rent. Hence, he prays to dismiss the suit. 9. Basing on the above pleadings, the following issues were settled for trial: 1.Whether the plaintiff has got issued legal notice seeking eviction of the defendant from the suit schedule premises and the same has been duly served on the defendant or not? 2. Whether the defendant has agreed to sell the suit shop for consideration of Rs.6.00 lakhs and the security deposit of Rs.4.00 lakhs which was lying with the defendants is agred to be treated as advance sale consideration? 3.Whether the plaintiff has paid Rs.1,00,000/- to the defendant on 11-11-2002 towards part sale consideration under oral agreement of sale? 4.Whether the plaintiff is entitled for the relief of specific performance? 5.Whether plaintiff is entitled for the alternative relief for refund of Rs.5,00,000/- together with interest at 18% p.a. from the defendant? 6.To what relief? 10. On behalf of the plaintiff, P.W.1 was examined and Exs.A1 to A5 were marked. On behalf of the defendant, D.Ws. 1 and 2 were examined and Ex.B1 was marked. Both the suits were disposed of by the common judgment. 11. The trial Court after considering the evidence on record, decreed O.S.1467 of 2003 directing the defendant to vacate the schedule premises within three months and continue to pay the rents as ordered by the Court and as confirmed by the High Court till the date of delivery of schedule premises to the plaintiff. The trial Court partly decreed O.S.1904 of 2004 directing the defendant to refund the admitted security deposit of Rs.4,00,000/- without interest as and when the plaintiff handover the vacant possession of the schedule premises. Challenging the common judgment and decree, these two appeals have been preferred. 12. Learned counsel appearing for the appellant contended that the plaintiff in O.S.1904 of 2004 entered into oral agreement with the defendant therein so as to purchase the plaint schedule property and an amount of Rs.4,00,000/- which was in deposit while taking the premises in question has to be adjusted towards the part of sale consideration, that an amount of Rs.1,00,000/- was also given towards part of sale consideration and that the plaintiff has not come to the witness box to speak about these aspects and the evidence of D.W.1 and his brother would clearly go to show that there was an agreement of sale for purchase of the property in question, that this aspect of the case has not been considered by the trial Court and that Ex.A2 notice is defective and it cannot be a notice within the meaning of Section 106 of the Act so as to evict the defendant in O.S.1467 of 2003 and therefore, he prays to set aside the common judgment. 13. On the other hand, learned counsel appearing for the respondent contended that except the oral interested testimony of D.Ws. 1 and 2, there is no other evidence to show about the oral agreement of sale and the advance amount has to be refunded to the defendant in O.S.1904 of 2004 in terms of Ex.A1 registered lease deed and contrary to the terms of Ex.A1, it cannot be said that the advance amount has to be adjusted towards part of sale consideration, that after filing of the suit for eviction, the appellant came before the Court claiming that he is entitled for the relief of specific performance by an agreement of sale from the defendant, that the trial Court after considering the evidence on record, decreed the suit duly ordering eviction of the appellant herein and dismissing the suit filed by the appellant insofar as grant of relief of specific performance of agreement of sale is concerned and hence, there are no grounds to interfere with the same. 14. Now the points for determination are; 1) whether the plaintiff in O.S.1467 of 2003 is entitled for eviction of the defendant therein and 2) whether the plaintiff in O.S.1904 of 2004 is entitled for specific performance of agreement of sale?. 15. Insofar as point No.1 is concerned, Ex.A1 is the lease deed said to have been executed in between the landlord and tenant on 01-01- 2000. At the time of execution of this document, an amount of Rs.4,00,000/- was given to the plaintiff towards security deposit which has to be refunded to the defendant at the time of vacating the suit schedule premises. Ex.B1 is the receipt, which is admitted by P.W1. So the recitals in Exs.A1 and B1 would clearly go to show that an amount of Rs.4,00,000/- was paid by D.W.1 to the plaintiff with an understanding that security deposit amount has to be refunded to P.W.1 at the time of vacating the premises. Therefore, under no stretch of imagination, it can be said that there is some other understanding between the parties contra to the recitals. There is no recital in Ex.A1 to show that amount has to be adjusted towards part of sale consideration. Ex.A2 is the legal notice issued under Section 106 of the Act and there is absolutely no evidence to show that it was not in accordance with Section 106 of the Act. The evidence of P.W.1 is very clear that in pursuance of Ex.A1,D.W.,1 was inducted into possession as a tenant. The lease period is over by 31-10-2002. Thereafter, Ex.A2 notice was given duly terminating the tenancy between the landlord and tenant. Therefore, it does not show that Ex.A2 is not in accordance with law. Once Ex.A2 is in accordance with law, the tenant is bound to vacate the premises. On this aspect, the trial Court rightly given finding that the tenant is liable for eviction. 16. Insofar as point No.2 is concerned, the allegation is that the parties are orally agreed that the security amount has to be adjusted towards part of sale consideration. It is further case of D.W.1 that he gave an amount of Rs.1,00,000/- towards part of sale consideration totaling to Rs.5,00,000/-. With regard to oral agreement of sale, except the interested testimony of D.Ws. 1 and 2, there is no evidence to show that there was oral agreement of sale entered into between the parties so as to purchase the property. Having admitted by D.W.1 that he is entitled to take back the amount by virtue of Ex.A1 lease deed and contrary to the terms and conditions of the lease deed, he cannot set up a new oral plea stating that parties agreed to adjust that amount towards part of sale consideration. If really the same is to be accepted, D.W.1 ought to have obtained an agreement of sale from P.W.1. Similarly his contention that he paid Rs.1,00,000/- towards part of sale consideration cannot be accepted because when he was in the habit of obtaining receipts from the plaintiff, he ought to have obtained a written document namely agreement of sale, if any, evidencing the transaction. Therefore, D.W.1 appears to have filed the suit as a counter blast to the suit filed by P.W.1 for evicting him. Except the oral interested testimony of D.Ws. 1 and 2, there is no other evidence to show that there was agreement of sale in respect of purchase of the property. The trial Court after proper appreciation of evidence on record, rightly dismissed the claim of D.W.1. 17. Learned counsel for the appellant contended that since 1996 the appellant is carrying on business in the premises in question and he seeks six months time for vacating the premises. On the other hand, learned counsel for the respondent opposed the same on the ground that period of lease has already been expired. Considering the fact that for the last 14 years, the appellant is doing business in the premises in question, necessarily he has to secure an alternative suitable accommodation for carrying on business. Therefore, four months time can be granted to the appellant for vacating the premises. 18. Accordingly, both the appeals are dismissed. However, the appellant is granted four months time to vacate the premises. The appellant shall give an unconditional undertaking within two weeks from today subject to condition of payment of rents before the trial Court that he is going to vacate the premises within four months from the date of giving undertaking. No order as to costs. --------------------- K.C.BHANU, J DATED:13-12- 2010 Hsd