Sixth Energy Technologies PVT LTD vs. Smt Veena Srinivas
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Cause title — parties, addresses and appearances
ORDER
This petition by defendant No.3 in Com.O.S.No.1809/2022 is directed against the impugned order dated 11.07.2023 passed by LXXXVIII Addl. City Civil & Sessions Judge, Bengaluru (Commercial Court), whereby the application – I.A.No.II filed by respondent No.1 – plaintiff under Order XXXIX Rule 10 CPC was allowed while application – I.A.No.III filed by the petitioner – defendant No.3 under Order XIII-A CPC for summary judgment was rejected by the Trial Court.
Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. NC: 2024:KHC:6369
A perusal of the material on record will indicate that respondent No.1 – plaintiff has instituted the aforesaid suit against her sisters – defendant Nos.1 and 2 and petitioner – defendant No.3 for recovery of a sum of Rs.90,62,067/- together with future interest at 8% p.a. along with applicable GST and for other reliefs. It is an undisputed fact that respondent Nos.1 to 3 are sisters and respondent Nos.2 and 3 are defendant Nos.1 and 2 while respondent No.1 is the plaintiff and petitioner is defendant No.3 in the suit. It is the specific contention of respondent No.3 – defendant No.1 in the Trial Court that she alone is entitled to entire rentals payable by the petitioner – defendant No.3 while respondent No.1 – plaintiff and respondent No.2 – defendant No.2 jointly contend that all the three sisters i.e., plaintiff, defendant No.1 and defendant No.2 are entitled to 1/3rd share each in the rents payable by defendant No.3 – petitioner.
During pendency of the suit, respondent No.1 – plaintiff filed an application – I.A.No.II for a direction to the petitioner – defendant No.3 to deposit the arrears of rent and for other reliefs. So also, petitioner – defendant No.3 filed an application – I.A.No.III seeking summary judgment for dismissal of the suit on the ground NC: 2024:KHC:6369 that the same was not maintainable in law. Both the applications having been taken up together, the Trial Court proceeded to pass the impugned common order allowing I.A.No.II filed by the plaintiff and rejecting I.A.No.III filed by the petitioner – defendant No.3, who is before this Court by way of the present petition.
A perusal of the material on record will indicate that there are several contentious issues and disputed questions of law and fact that arise for consideration between the plaintiff and defendant No.2 on one hand and defendant No.1 on the other. While plaintiff and defendant No.2 jointly contend that they are entitled to 1/3rd share each in the rents payable by defendant No.3, the defendant No.1 claims that she alone is entitled to receive the entire rental payable by defendant No.
The said inter-se dispute between the landlords, i.e., the plaintiff and defendant Nos.1 and 2 indicates that the same requires adjudication only after a full- fledged trial and as such, it cannot be said that the petitioner – tenant can not be directed to deposit the rents payable by him before the Trial Court. It is pertinent to note that by impugned order the Trial Court has merely directed the petitioner – defendant No.3 to deposit the entire arrears of rents payable before the Court NC: 2024:KHC:6369 without directing the said amount to be released / disbursed in favour of any of the parties. Under these circumstances, I am of the considered opinion that the impugned order passed by the Trial Court allowing I.A.No.II and directing the petitioner – defendant No.3, who is undisputedly a tenant to deposit the admitted arrears of rent does not suffer from any illegality or infirmity nor can the same be said to be capricious or perverse or resulted in miscarriage of justice warranting interference by this Court in the exercise of its juri iction under Article 227 of the Constitution of India as held in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423 case.
Insofar as the impugned order rejecting I.A.No.III filed by the petitioner is concerned, the material on record indicates that the rival contentions between plaintiff and defendant Nos.1 and 2 require determination / adjudication only after trial and at this stage, it cannot be said that the plaintiff has no real / reasonable prospect of succeeding in the suit which involves genuine issues of material facts which does not warrant summary judgment to be pronounced by dismissing the suit. The said contention has also been rejected by the Trial Court in the impugned order by holding as under: NC: 2024:KHC:6369 “I.A.II is filed by the plaintiff U/o XXXIX rules 7 and 10 CPC for a direction to the 3rd defendant to deposit of Rs.90,62,067/- towards arrears of rent claiming that disposal of the suit for arrears of rent will take substantial time and the 3rd defendant may plead inability to pay arrears of rent contending to have suffered loss in business just to defraud and in such an event, she will be put to untold misery and hardship.
I.A. III is filed U/o XIII-A CPC by the 3rd defendant for summary judgment dismissing the suit against him claiming that the plaintiff does not have real prospect of succeeding in the suit firstly because , there is no jural relationship of tenant and landlord between him and the plaintiff or the privity of contract and secondly, on account of inter se dispute between the legal heirs of the deceased landlord.
Defendants 1 and 3 have filed objections to I.A. II and the plaintiff has filed objections to I.A. III.
The learned counsel for the plaintiff argues that the 3rd defendant is denying the rents due in respect of the suit property on untenable even after on bringing to notice about the probate orders and the plaintiff’s mother issuing NOC to pay the rents to the plaintiff and her sisters; the 3rd defendant is intentionally avoiding payment of rents and therefore should be directed to deposit the same in the court.
Per contra, the learned counsel for the 3rd defendant argues the will executed by Late Narayana Gowda cannot be the basis for establishing contractual relationship between the plaintiff and the 3rd defendant and there is not previty of contract between the parties. The legal heirs of the deceased landlord cannot claim the rents in their individual capacity; and they need to comply with provisions of Income Tax Act and GST Act and have common NC: 2024:KHC:6369 PAN. The 1st defendant has issued letter requesting the 3rd defendant not to entertain any request from the plaintiff or the 2nd defendant or to enter into any agreement with them.
It is also argued for the 3rd defendant that the property of the deceased vests in the executor in terms of Sec.211 of the Indian Succession Act. Unless the executor assents, the plaintiff who is one of the beneficiaries beneficiary under the will cannot claim rents. Only after filing of the inventory and final accounts as contemplated U/s 317 of Indian Succession Act, the legatee can sue for accounts.
In support of the above, court’s attention to illustration (ii) to and Ors. of the Hon’ble High Court of Judicature, Madras in C.S. No.708/1992. Several unreported judgments of the Hon’ble High Court, Delhi are relied upon to contend that suit can be summarily dismissed if the court comes to the conclusion that the plaintiff has no real prospect of success and there cannot be a second word about this proposition in view of the provisions contained in Order XIII-A CPC, as amended by Sec. 16 of the Commercial courts Act.
Order XXXIX Rule 10 CPC provides that “Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court. NC: 2024:KHC:6369 There is no dispute that the father of the plaintiff and defendants 1 and 2, was absolute owner of the suit property and he inducted the 3rd defendant as a tenant on monthly rental basis for a period of 15 years from 01.07.2010 under the registered lease deed dated 07.06.2010. On his death, his wife who was the executor under the registered will dated 04.06.2014 obtained probate as he has executed bequeathing the suit property equally in favour of the plaintiff and her two sisters and appointed probate in P & SC 365/2020 on 08.03.2022. The plaintiff and her two sisters are having equal rights over the suit property by virtue of the registered will executed by their father and the khata of the suit property stands in their joint names.
The tenanted property is commercial property. Under the Will dated 04.06.2014, the entire property consisting of basement, ground, first, second and terrace floor is jointly bequeathed in favour of the plaintiff, defendants 1 and 2. The plaintiff specifically claims that her mother has issued NOC for payment of rents in her and her sisters’ favour, and the same is already handed over to the 3rd defendant. The same in my considered opinion amounts to assent from the executor of the will as contemplate U/s 332 of the Indian Succession Act; the suit is very much maintainable and the ratio in the judgments cited supra, is not of no avail to the 3rd defendant, in the above circumstances.
Further question of filing a report by the executor of the will as per Sec.317 of the Indian Succession Act arises only if there is such direction by the court. Order of the probate court is judgment in rem and if there is such direction to the executor or not is to be considered after parties let in evidence. The 3rd defendant being a tenant of the suit property cannot dispute the title of the lessor, specially when the lease deed provides that the term ‘lessor’ NC: 2024:KHC:6369 means and includes, the representatives, legal heirs, successors in interest, administrators, assignees etc.
Thus viewed from any angle, the contention that there is no lease agreement subsisting between the plaintiff, her sisters and the defendant cannot be accepted. Here it is relevant note that though it is submitted that the 3rd defendant is ready to pay rents to the plaintiff’s mother, no steps are taken in that behalf till date; and no documents or produced to show that agreed rent was offered to the executor under the will any time after her husband’s death.
The 3rd defendant, as rightly argued by the plaintiff’s counsel, appears to be taking undue advantage of inter se dispute between the plaintiff and her sisters to deny the rents due; and also insisting on having a common PAN even when the request is to deposit the arrears of rents and future rents into court, just to avoid payment of the same.
In the above facts and circumstances of the case, the argument of the 3rd defendant that the plaintiff has no real prospect of succeeding and the suit is not maintainable U/s 332 of the Indian Succession Act or Sec.2(c)(1) of the Commercial Courts Act, is devoid of merits.
In the result, I pass the following. ORDER I.A. II filed by the plaintiff U/O XXXIX Rule 10 CPC is allowed. I.A.III filed by the 3rd defendant U/o XIIIA CPC is rejected. The 3rd defendant is hereby directed to deposit arrears of rent of Rs.90,62,067/- into the court by 10.08.2023.” NC: 2024:KHC:6369
In my considered opinion, the Trial Court has correctly and properly appreciated the rival contentions and noticed that there is a serious and genuine dispute between the plaintiff and defendant No.2 on one hand and defendant No.1 on the other as regards to their respective entitlement to the rents payable by defendant No.
Under these circumstances, the impugned order insofar as it related to rejecting I.A.No.III also cannot be said to suffer from any illegality or infirmity and consequently, the impugned order cannot be said to have resulted in miscarriage of justice warranting interference by this Court in the present petition.
In the result, I pass the following: ORDER (i) The petition is hereby disposed of without interfering with the impugned order. (ii) Petitioner is directed to deposit the entire arrears of rent before the Trial Court within a period of six weeks from today. NC: 2024:KHC:6369 (iii) The petitioner is also directed to deposit the monthly rents as and when they fall due before the Trial Court till disposal of the suit. (iv) The Trial Court is directed to dispose of the suit as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order. JUDGE
SV List No.: 3 Sl No.: 8
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.