CAV JUDGMENT

This is defendants appeal directed against judgment and decree passed in OS.No.7270/2002 on the file of 30th Additional City Civil Judge, Bengaluru city dated

19.03.2010.

2. I refer to the parties as per their rankings before the trial Court.

3. It is the case of plaintiff that plaintiff is the landlord of the suit schedule property. During the year 1995, he had leased out one corner shop premises to defendants on monthly rent of Rs.2,000/- and defendant has to pay security deposit of Rs.1,00,000/-. Within two months, defendant Nos.1 and 2 again approached plaintiff to let out adjacent shop premises to the defendants on same terms and conditions. The plaintiff has agreed for the same and let out adjacent shop premises to defendants on the same terms. Defendants had to pay additional advance amount of Rs.1,00,000/- and total rent of both the shop was Rs.4,000/-p.m. The defendants did not pay additional advance amount of Rs.1,00,000/- while taking the second shop premises on lease. Hence lease agreement of the said shop was not executed.

4. It is further case of the plaintiff that on

24.06.1998, the plaintiff renewed lease of corner shop; since the defendants did not pay the additional advance amount of another shop as per terms, the plaintiff did not execute the lease deed or renewal lease deed in respect of another shop let out to defendants. However, lease of both the shops continued. It was agreed between the parties earlier that after completion period of lease of every two years, 10% of rent has to be enhanced. Accordingly, defendants were liable to pay enhanced rent of Rs.4,400/- per month.

5. It is further case of plaintiff that he insisted for payment of unpaid advance amount of Rs.1,00,000/- in respect of one of the shops, thereafter, defendants stopped paying rent in respect of both shop premises from April 2000 to October, 2002. Plaintiff issued notice to defendants, calling upon them to pay the arrears of rent. Inspite of receipt of notice, they did not pay the same. With these reasons, plaintiff’s prayed for arrears of rent from April, 2000 to October 2002 @Rs.4,400/- per month along with interest @ 24% per annum amounting to Rs.1,36,400/-.

6. The defendants have appeared before the trial Court, through an advocate, but did not file written statement.

7. Plaintiff to prove his case examined himself as PW-1 and got marked Ex.P1 to P18. The defendants have not led evidence, but in the cross-examination of PW-1, defendants got is marked as Ex.D1.

8. The learned trial Judge, after hearing both the parties and on perusal of the materials available on record, framed one point for determination and answered the point in affirmative and decreed the suit by impugned judgment and decree. Same is challenged by the defendants on the grounds mentioned in the appeal memo.

9. Heard the arguments.

10. Learned counsel for the appellant would submit that according to plaint averments, defendants initially took one shop on lease during the year 1995 and an agreement of lease was executed and they paid Rs.1,00,000/- as advance. Defendants were paying rent at Rs.2,000/- per month. As per the case of the plaintiff, defendants took another shop on lease on the same terms and conditions. The defendants assured that they would pay deposit of Rs.1,00,000/- but they have not paid the same. The plaintiff has also contended that defendants have not paid the rent from April, 2000 to October, 2002, at the rate of Rs.4,400/- per month. But in the cross- examination PW-1 admitted that during the year 1998, defendants have paid Rs.1,00,000/- as deposit. He also admitted execution at Ex.D-1 in this regard.

11. The learned advocate has further submitted that as per the plaint averments, plaintiff has received Rs.1,00,000/- as deposit during 1995 and PW-1 admitted receipt of deposit at Rs.1,00,000/- during 1998. Hence, in all Rs.2,00,000/- deposit was available with the plaintiff. The plaintiff should have deducted the said arrears of rent from the