::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BIDAR::
C.C. No.33/2020.
Date of filing: 17.03.2020.
Date of disposal: 23.10.2020.
P R E S E N Ts:-
(1) Shri. Rajmohan Srivastava
B.Sc. M.A.LL.M.
President.
(2) Shri. Shankrappa (Halipurgi)
B.A.LL.B. (Spl.)
Member.
(3) Kum. Kavita
M.A.LL.B.
Member.
COMPLAINANT/S: Smt. Savita W/o Ravichandra Shivapuje
Age 50 years Occ: House hold
R/o H.No. 4/1 Main Road
Chitguppa Tq.Humnabad
Dist. Bidar.
( By Shri.Deshpande P.M. Advocate)
VERSUS
OPPONENT/S: The Manager
Karnataka Bank Ltd.
Branch Chitguppa Tq.Humnabad
Dist. Bidar.
( By Shri S.R. Sangamkar Advocate)
:: J UD G M E N T ::
By Shri. Rajmohan Srivastava President.
This complaint filed by the above said complainant ( U/sec. 12 of C.P. Act. 1986 (Old)) U/sec. 35 1 &2 of the C.P.Act. 2019 (New) against the Respondent alleging deficiency in service on the part of Respondent.
2. The subject of the case is as under:
The complaint of the complainant who is native of village Chitguppa Tq.Humnabad Dist.Bidar. She has owned housing complex bearing premises No. 12/70. On the request of the Respondent Bank to install and run ATM machine and so given on rent the premises to the extent of area 156.56 sq.feet plinth area, carpet area about 105 sq.feet. The complainant also on the request for ATM purpose as per the specifications and requirements of the Bank provided necessary facilities such as new building fixing of shutter at the entrance and laying vitrified tiled floor providing of parking space and also by making deposit in Gescom for obtaining separate electrical installation to the ATM. The complainant also fulfilled all the requirements of the Respondent Bank and so the complainant invested Rs. 500000/ for construction of new ATM room to the Respondent- Bank. The complainant submitted that the Respondent Bank took the building for ATM by lease at lease for a period of 10 years. The lease agreement got drafted by the Bank which was executed by the registration vide lease agreement document No.7468/13 14 dt. 17.02.2014. The Respondent-Bank incorporated various terms and conditions in the lease agreement. It is also agreed that the monthly rent for first 5 years from 06.02.2014 to 31.01.2019 was Rs.5500/ per month and for another extension from 01.02.2019 to till 31.01.2024 the rent monthly Rs. 6325/ The Respondent Bank in addition deposited interest free rent advance Rs. 33000/- which will be repayable by the complainant after lease period of 10 years completion. Thus the Respondent Bank shall run the ATM machine until 31.01.2024. The Respondent-Bank cannot terminate the lease agreement invoking clause No.17 which is contrary to clause No.1 and 2 of the agreement. The Respondent-Bank violated the terms and conditions of lease agreement and the notice of termination of lease agreement issued by the Respondent Bank on 05.10.2019 and received by the complainant on 10.10.2019 which is illegal contrary to the terms of the contract. The complainant invested her own funds about the lease for ATM room for Respondent-Bank. The complainant being beneficiary so under such circumstances the Respondent Bank either to pay future rent up to the end of lease period 31.01.2024 as long as the rent is not paid by the Respondent Bank till 03.01.2024 the Respondent Bank cannot vacate the premises. The Respondent Bank involved in unfair trade practice which resulted mental and financial loss to the complainant and claimed compensation cost of Rs. 200000/ and to pay future rent both inclusive. The complainant prayed that the termination notice be quashed and rent amount vide lease agreement until 31.01.2024 with compensation 200000/ be payable to the complainant by the Respondent Bank. The contents of the complaint verified by the complainant as true and correct by filing separate affidavit along with complaint.
3. The Respondent Bank appeared through their penal Advocate and filed Written Version with all the contents narrated in the complaint are false frivolous and vexatious in the eye of law and complaint of the complainant is not maintainable. The Respondent-Bank disputed that the complainant is a consumer as defined under C.P.Act. The Respondent Bank submitted the permission accorded by controlling authority of Respondent-Bank for the installation of ATM at Chitguppa to take on lease for premises of the complainant vide TMC No. 12 70 (new) at Chitguppa to an extent of 156.56 sq.feet plinth area totally 105 sq feet. For installing Bank ATM in the said premises. The Respondent Bank did not dispute about the registration of lease agreement vide document No. HUM 1 07468 2013 14 vide CD No. HUMD 101, dt.18.02.2014 with all the terms and conditions vide sanction letter dated 23.01.2014. The Respondent-Bank stated that the agreement for lease for 10 years commencing form 06.02.2014 to 31.01.2024. But the Respondent-Bank claimed that clause No.17 narrated in the registered lease agreement The lessee (Respondent) is at liberty to terminate the Lease Agreement and surrender the Premises before the completion of lease period by giving Notice at least one month in advance. The Respondent-Bank did not dispute the rent payment of Rs. 5800/ per month for the first 5 years period from 06.02.2014 to 31.01.2019 and again Rs. 6325/ per month from 01.02.2019 to 31.01.2024 it is also stipulated the lesser complainant carry out the minor repairs towards the rental advance with no interest Rs. 33000/ It is also agreed that the rental advance shall be adjusted towards the rent for the premises or to surrender the premises or will be repaid of vacating of the premises. The Respondent-Bank specifically pleaded in defence due to business reasons the Respondent Bank has decided not to continue the ATM and terminated the lease agreement dated 18.02.2014 and so the notice was given to the complainant on 05.10.2019. It is thereafter the complainant issued a legal notice to the Respondent Bank and the Respondent Bank denied the contents of the legal notice as baseless. The Respondent Bank submitted that the complainant not turned up to take the possession of the premises nor paid that the remained rental advance Rs.18175/ ( by deducting monthly rent of Rs.6325/ from the amount of Rs. 33000/) Thus it is submitted that the complainant is not the consumer and Respondent- Bank has not violated any terms and conditions of the lease agreement and both complainant and Respondent are bound over by the lease agreement. The Respondent Bank is not liable to pay any compensatory cost or any future rent premises. Whereas the complainant herself liable responsibility to pay back the remained rental amount of Rs.18175/ and prayed the compliant of the complainant be dismissed with costs as not maintainable.
4. The complainant to prove her case has given by sworn affidavit and narrated all the grounds examined as P.W.1 and documents examined as Ex.P.1 to P.5 and closed her side.
5. The Respondent -Bank has examined by Mr.Sharanbasappa S/o Shivayogappa Branch Manager of Karnataka Bank Ltd. Branch Chitguppa and evidence supported by affidavit as R.W1. and not exhibited the documents.
6. Apart from Written Argument by the Respondent and also advanced arguments by the both parties in the light of evidence of P.W.1 and R.W.1 and documents.
7. We have heard from the both sides and perused the documents carefully
8. Considering the above said facts and circumstances of the case following points arose for our consideration.
- Whether the Respondent prove and show that the matter in dispute between land lord and tenant as such the complainant is land lord and the Respondent Bank is tenant and the consumer Commission has no jurisdiction?
- Whether the complainant prove that the complainant is Consumer and receiving rent from the rented premises bearing No. TMC No.12-70 at Shivapuje complex main road Chitguppa, wherein the Respondent Bank installed Banks ATM and the agreed rent amount for the first 5 years from 06.02.2014 to31.01.2019 Rs.5500/ per month and further agreed by extension from 01.02.2019 to 31.01.2024 monthly rent Rs. 6325/ payable by the Respondent Bank with rent advance Rs. 33000/ and termination notice vide Registered lease agreement document caused unfair trade practice and as a result sustained loss to claim rent and damages as prayed in the complaint?
- What orders ?
9. Our answers to the points raised above are as follows:
- In the Negative
- Partly in the affirmative as per order.
- As per the final order.
10. The both points No.1 & 2 in consideration arise out of the same facts and circumstances and therefore linked together and answered accordingly on the findings as therein below.
11. The complainant and Respondent in view of the given facts of the case which totally undisputed that the Respondent Bank vide registered lease agreement document No. HUM 1 07468 2013 14 dated 17.02.2014 but it was registered on 18.02.2014 in corporate various terms and conditions between both of them. But in this complaint there is no dispute about the tenancy or else a case of seeking eviction. Therefore the complainant has been consumer has come to the Commission to claim compensatory cost and damages and future rent from 01.02.2019 to 31.01.2024 at the agreed rent amount Rs.6325/ per month payable by the Respondent-Bank. It is in sudden termination of tenancy the complainant sustained huge loss for no valid reasons and filed this complaint under Consumer protection Act. to claim damages and compensation. Hence this consumer Commission has jurisdiction to decide the matter U/ sec. 35 1 &2 of the C.P.Act., 2019. Therefore the complaint has jurisdiction and the Respondent unable to show in view of the contents of the complaint and defence set up in the Written Statement. Hence this Consumer Commission has jurisdiction to entertain the complaint and to pass an order under the new Act. U/sec. 35 1 &2 of the C.P.Act. 2019. Hence the point No.1 we answered in the negative.
12. Basically while going through the contents of the complaint and pleadings of the Written Statement and the complainant by sworn affidavit exhibited documentary evidence from Ex.P.1 to P.5 to prove the case against the Respondent- Bank. The Respondent Bank also putting evidence by sworn affidavit by its Bank official namely Mr. Sharanbassappa, s/o Shivayogappa Branch Manager of Karnataka Bank Ltd. Chitguppa and denied that any violation as per clause 17 of the rent agreement produced and marked by the complainant Ex.P.3. The Respondent Bank also produced same copy of registered lease agreement it goes to show that the complainant before to let out the Respondent Bank for installation of ATM in the premises bearing No. 12 70 to the extent of extent of area 156.56 sq.feet plinth area and carpet area of 105 sq.feet successfully that the Respondent Bank installed the ATM. It is further very material ground in this case that the complainant raised and provided the logistically infrastructure as per the specifications and requirements of the Bank. By going through Ex.P.3 registered lease agreement the Bank has taken all necessary conditions and incorporated in the registered lease agreement and equally the complainant has fulfilled and therefore the Respondent- Bank for first five years that is between 06.02.2014 to 31.01.2019 was running ATM machine in the scheduled premises within the description as already stated and described herein above. The another extension as per registered lease agreement from 01.02.2019 to 31.01.2024. Meanwhile the Respondent Bank terminated the agreement by issuance of notice on 05.10.2019 and made request to calculate the rent due from the Respondent-Bank and also requested to refund the interest free rent advance amount given towards the rented premises from the Bank as soon as possible. The Bank by its notice by termination made also clear on refund of interest free advance Bank will hand over vacant and peaceful possession to the complainant. It is from the records and termination notice would make clear that the Respondent-Bank completed first five years from 06.02.2014 to 31.01.2019 at the rate of agreed rent Rs. 5500/ per month. It is another period which started from 01.02.2019 to 31.01.2024 and the agreed rent Rs. 6325/. But the Bank taking the benefit of clause No. 17 terminated tenancy by 05.10.2019. It is this termination which is in the second period of extension and that to the Bank completed approximately eight months and running ATM machine. The Bank stated for termination of tenancy by citing business reasons But from the records the premises No. 12-70 Shivapuje complex is situated on main road Chitguppa. The Respondent Bank when able to do business satisfactorily not only first five years period from 06.02.2014 to 31.01.2019 and also in the second period from 01.02.2019 to 05.10.2019 and also running machine for eight months cannot be accepted and believed that the Respondent Bank by raising business reasons to terminate the tenancy. Apart from that when carefully perused all the terms and conditions of registered lease agreement it appears that it is one sided agreement simply can be interpreted that all the terms and conditions only with the direction to the complainant to complete and the premises bearing TMC No12-70 shall be as per their specifications and requirements. When the Respondent Bank not only completed first 5 years and also in the beginning of second 5 years then by simply mentioning and taking the benefit of clause 17 vide registered lease agreement and same produced ( The lessee Respondent is at liberty to terminate the Lease Agreement and surrender the Premises before the completion of Lease period by giving Notice at least one month in advance.). This after having we heard the oral arguments and also going through the written arguments that this clause 17 appears one sided agreement led to believe unfair trade practice committed by the Respondent-Bank. But not in the interest of justifying to the complainant. When the building location 12 70 is on the main road of Chitguppa it cannot be accepted for the business reasons to terminate the tenancy. The Respondent-Bank has not shown how its service to its customers suffered at the premises 12 70 of the complainant by any documentary evidence. On the other hand the complainant has made investment to meet out the necessary conditions of the Bank for the installation of ATM. There is no any allegation from the Respondent-Bank that the premises 12 70 is insecure or not doing good or best business to the expectation of the Respondent-Bank. As we have stated above the clause 17 to the Respondent-Bank as lessee is given total freedom which is one sided that at the liberty of Respondent-Bank to terminate the lease agreement and surrender the premises before completion of the lease period by giving notice at lease one month in advance. We do not find the business reasons shown in the notice or any valid grounds and the complainant as stated in the complaint and sworn affidavit which resulted mental agony and financial loss to her. It is no doubt in the Written Statement of the Bank the Respondent-Bank shown the rental advance of Rs. 18175/ by deducting the monthly rent of Rs. 6325/ from the amount of Rs. 33000/ as on 19.06.2020 shown outstanding advance amount as Rs. 18175/ It is because the complainant has not taken possession of the premises 12-70 and therefore the Respondent Bank deducting rent from the rental advance. But the complainant has proved against the Respondent-Bank for no valid reasons to terminate the tenancy. In the absence of documentary evidence on the part of the Respondent-Bank to sustained loss in running ATM machine then it could be believed that the complaint of the complainant is true and genuine to claim compensation. But however now the tenancy is terminated and the Bank is not running ATM machine from 05.10.2019 as per its termination tenancy notice. As per Ex.P.2 the complainant is entitled not as per the claim made out in the complaint to claim future rent from the date of termination till 31.01.2024 . But any how when the complainant sustained business loss due to breach of registered lease of agreement and the investment made in connection with premises 12 70 the complainant is entitled not as prayed or she is not entitled future rent from the date of termination. But however that can be compensated by award compensation of Rs. 50000/ and further to have suffered mental agony about loss of tenancy of the Respondent Bank to claim a sum of Rs. 25000/ and ligation expenses Rs.5000/. Thus by totality on calculation the complainant is given award of Rs.80000/ against the Respondent-Bank. But other claims as claimed based on not valid grounds and not valid for consideration. Hence the point No.2 answered partly in the affirmative.
13. The complainant who has claimed as Rs. 500000/ for carrying out the specifications for the want of evidence failed to show the investment of Rs. 500000/ at the time of letting out on the rent the premises 12-70 for installation of ATM machine of the Respondent-Bank as not acceptable
14. It is therefore from the foregoing reasons in regard to point no.1 and point no.2 in consideration the complainant proved the case against the Respondent as per order and ordered accordingly.
::ORDERS::
The complaint filed by the complainant (U/s. 12 of C.P.Act.1986 (Old) U/s. 35 1 &2 of the C.P.Act. 2019 (New) against Respondent allowed with costs.
Consequently the Respondent is liable to pay Rs.50000/ towards the compensation with interest at the rate 8% p.a. from the date of order till realisation.
The Respondent -Bank is directed to pay Rs. 25000/ to the complainant towards mental agony and Rs. 5000/ towards litigation expenses.
It is further ordered that, it is immediately after compliance of order/award from the Respondent-Bank the Respondent Bank shall vacate the premises 12 70 by lawfully handing over peaceful possession in favour of the complainant accordingly or else on failure to do so the rent will continue at the rate of Rs.6325/ per month.
The rent advance is required to be adjusted Rs. 33000/ in the calculation regarding payment of rent until the building 12 70 vacated by Respondent Bank.
The Respondent shall comply the above said orders within sixty days from the date of this order.
Intimate the parties accordingly.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 23rd day of October 2020).
Sri.Shankrappa H. Member | Kum. Kavita Member | Sri. Rajmohan Srivastava President. |
Documents produced by the complainant.
- Ex.P.1 Legal notice addressed to Karnataka Bank Limited Bidar by the complainant
- Ex.P.2 Letter addressed to the Complainant by Karnataka Bank.
- Ex.P.3 Copy of Lease Agreement.
- Ex.P.4 Certificate of Registration fee paid.
- Ex.P.5 Xer+ox Copies of Aadhar Card, Pan Card and Voter I.D. Card of the complainant
Document produced by the Respondent.
Nil
Witness examined.
Complainant.
- P.W.1Smt.Savita w/o Ravichandra Shivapuje (Complainant ).
Opponent/s
1 R.W.1 Mr.Sharanbasappa S/o Shivayogappa Branch Manager of Karnataka Bank Ltd. Chitguppa. (Respondent )
Shri.Shankrappa H. Member | Kum. Kavita Member | Shri. Rajmohan Srivastava President. |
