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M/S Hindustan Petroleum … vs Sri P H Krishna Raj on 15 December, 2010

Karnataka High Court
M/S Hindustan Petroleum … vs Sri P H Krishna Raj on 15 December, 2010
Author: Ajit J B.V.Nagarathna
-1I

IN 'I"HE I-IIGI-I COURT OF KARNATAKA AT BANGALORE
DATED THIS 15'?" DAY OF DECEMBER, 

PRESENT

THE HONBLE MR. JUSTICE AJITII;'GLzi$IJA1;.:    V

AND  _ _ _
THE HONBLE MRS. JI;sfIIcIéVI:=.,Ik';NAG.ARA'I5aRAT: u
R.F.A.No.'i'8..2;2/2015'---  1 '  1
BETWEEN:   'A 1' 

M/S HINDUSTAN PETROLEIJII/IV_CORP~ORAi17ION LTD
HAVING HS RIa:GIONAI;"OI«*IrICI«:AT.' -  *
NO.77, OLD  ROAD     
DOORAVANIN;.AGLAR'_PO$T  ' ' .
KRISHNARAJA-PLIRA;wI. '  I
BANGALORE.356G.;Q16  _ " " 
R/BY ETS'"CH.IVEF REGIOPIAL MANAGER
SR1. D'ILIP_ KUM"AR:._VBARI».--'57A1IYI%:ARs

.,I¥jK.I~--IAI\IUI\/IIAI\I*I'IIA RAJ
_ J S/O "P.H.KRIsI-INA RAJ
'AGED ABOUT 39 YEARS

-  5; V' 'SR1. P.K.BHARAT KUMAR

S/O P.H.KRISHNA RAJ
AGED ABOUT 38 YEARS

RESPONDENT NO.1 TO 8 ARE

R/AT NO. .1 7/ I. MADRAS BANK ROAD
BANGALO REWBESOOO 1

I–4

HAJEE ENTERPRISES PVT. LTD

A COMPANY REGISTERED UNDER THE .

COMPANIES ACT 1956 8: HAVING ITS REGD, I
O%*’I*”ICE AT IIAJEE SICRVICE STATION. NO,.. I? ‘ A.

NEW No.36. ST. MARKS ROAD. BANGALcsRE:S’So__fem”

R/BY HEREIN BY ITS MANAGING DIRECT__IOR:V’-.. I

A I

(By: M/S KING & PARTRIDGE, ADV
SRI.T.SURYANARAYANA FOR R4}

. To «R5~.;”*.,, V

THIS RFA IS FII§EIj)’U,/_SI’T’I96.I:(};F~.CPC, AGAINST THE
JUDGMENT AND DEcI<IaT:j:wDA¢:jI«3D§'"o_6,:o8';éo1o PASSED IN
o.S.6581/2oo4'~QN 'I'H_E §fI:;I3: "ofi'Tt~II:…I§<-ADDL. CITY CIVIL
AND SESISIGIIISEAI'I-JI'j'I§GE,_ DECREEING THE
SUIT 1«fo_Ig PEI§IJIA1§JEI'lT'

Tiiius " App1:'é§IA:–G:' on for Admission this day.
AJIT J.GUNJALVJ;., de_IiVe'red the following:

….. MJUDGNIENT

'IIflaf)pea1 is by the defendant in

/2004 for ejectment In respect of the suit

I schediiie property with a further direction to them to
Nfeicéite and deiiver Vacant possession, directing them to

"Day a sum of Rs.85.00 lakh towards mesne profits

towards iIIega.I and unauthorised occupation of the suit

property from 1.4.2003 to 1.9.2004 and ah'-so with future

M')

W3-

mesne profits at Rs.5′:OO lakh pin. from the date “of suit
till the date of Vacating and delivering l,h.€~.:iV’E_i(,’fH_.fllI
possession of the suit property and also foil

injunction etc.

2. The facts can be surnmarised asifoliylowsi’;

Plaintiff No.1 is. the faithlerpandpplhainti-ff l’$os.2 and
3 are the sons. Family.

The suit property property of the
plaintiffs earlier by one
B.N.Put’talin:g;a rio””niore. The suit property
was Piianumanthaiah, father

of Plaintiff “No’.’1.ai1dA’grafidfather of plaintiff Nos.2 and 3

-‘”~.__to Cal Teiiiiidia Ltd., pursuant to a registered

18.5.1955 on a monthly rent of

for a period of five years with an

l*..option” the lessee to get the lease renewed upto

by three renewals of 5 years each. The

Hpllaintiffs case is that the monthly tenancy commencing

if from the first day of each Calendar month. The lease

was extended upto 1965. M,/s Ca} Tex India did twig;

II*§

b3″/xnieans of cheque.

‘*._and thereby altering structure of

schedule property.

4,

choose to renew the lease as provided in the lease deed

nor did it surrender possession of the suit p:'(:pertyv to

the owner and continued to be in posses-~sion”vof ;ti’:oe”:

same as tenant holding over by».payingu’
Rs.4O0/W. V A’ A it i
to the share of the fiittst’-v..vp1ainti.ff’
proceeding’. In the lithe petroleum
Companies were s._._Cal Tex India
Ltd., was taken Lover of India. Now it
V W l A As a

is known 3.-as” Hindl’ustan._ Petroie.um Corporation.

result,» .’defe.i1dant— into possession and
continued to of the property as tenant
holding oifeztdby payirgg lthle same rent every month to the

The ease of the

the defendants are making new

Con’str’uetiorislV; and structural changes in the property

the building and

“‘–dl’2_’aA.i~io_\2tfe~d the third parties to carry on their business in

The defendants are also

V’ collecting huge amount from third parties by way of rent

and deposits and getting huge pecuniary benefits at the

rlffiililt r)fu ‘
It appears that the suit

in Marbitralll

-5″

rate of Rs.4O/W per sq.ft. per month in collusion with

each other. In the circumstances, the plain’tiffs«.g”nad

issued notice on 6.3.2003 to all the

Section}.O6 of Transfer of PropertyAct;ltervntiimltinégig.the

tenancy and calling upon then} lvacaterandg d_eli\fer_

possession of the property’la:nd_V_gclaifned’

at the rate of Rs.10,0Q ‘frornvithe said
date. The premises quit notice
and a belatedreply defendants
denying other untenable
snit contending that the
defenda_nts_ denying the plaintiffs’ title

to the sttit.dp1’operty_sand defendants are liable to be

The plain’tifis would claim that the defendants

pay mesne profits for illegal and

occupation at the rate of Rs.l0.00 iakh

however, it was restricted to Rs.5.00 lakh.

the plaintiffs sought for eviction of the

.é _Hd_e-fendants.

3. Defendants entered appearance and filed

written statement inter alia contending that indeed the

9″”;

,3; 3;

“A ‘K 5

ow

«/
931′”…-M

_g,t

l~’*’- defendantwa Government company is having’ its office
in Mumbai and Zonal Office at Chennai
office at Bangalore submits that
maintainable and the suit is liableto
cause of action is made out.

that prior to the institutiof1i.,::o’f._thepresent;

the plaintiffs had issued coupleof “notices ‘o11″.?l3.3. 1985

notices under.:;S:VectidnW Vfllrwansfer of Property
Act, no initiated. In the
circurnstanlcgesl, llftfte is not at all
maintainahle. contended that there is

an arbitral-_clause__ aildthe plaintiffs have not exercised

Hence,-«-they contend that the suit is not

‘::l1.ain.tai.gjab’l’e:’ indeed, the defendants would not deny

thetitle of plaintiffs and they are the coparceners of

Iythe family property. The defendants certainly

V’ lC_’would_. admit that Hanumanthaiah had executed a lease

deed in favour of the defendants’ predecessor

ll company in the year 1955. T he said lease was extended/:?

4:’>?”‘”‘N ”

-7-
from time to time. After M/S. CalteX’s Acquisition of

Undertaking in India Act, 17 of 1977, the devfenldants

are in occupation of property and are pa.ying”the

They would also contend that the _:o£«

tenancy is not in conformity with-l.s.éc£:pn…’1-oefnf

Transfer of Property Act’ ‘«.Andlll’howireVg1f..i,

dismissal of the suits. _ _ pp

4. The 411″ appearance and
filed Written statement. the defendant
is a dealer They would also
admit’ Z__ -property was leased by
India Ltd., pursuant to

lease “deed 1955 for establishing petrol bunk.

They plaint averrnents and also claim not

H i.ia’.:-ile to lpay’;_mVesne profits or damages and hence, there

is no “cause of action against them. Based on these

learned trial judge has framed the following

issues:

i) Whether the quit notice dated 6.3.2003 is

valid? I

ii) Whether the plaintiffs are ent’itled to vacant
possession of the schedule property?

iii} Whether the plaintiffs are entitled-«
profits? _ V

iv) Whether the plaintiffs lxltoulp
permanent injunctic-nlsongh”t._for’?l,:_’: if

V} To what order or decl’i”ee’:;’A.A_lV A’ if

5. Learned trial hav.ing.VV’lreglard” the”.

evidence 1et-in by the ‘,p’la.i’n–tiffS. asfwelill as the
defendants, recordeda;:tha:t’v:tl_1.el”qnit notice dated

6.3.2003 lwith Section 106

of the”‘l’ the’-p1alir1’t’iffs are entitled to Vacant
possession property. Insofar as the

rnesne profit’ or’V–.darnVages are concerned, learned trial

thattiie defendants are liable to pay a sum

as rnesne profits. Being aggrieved by

tne saidl~iii.dt’gment and decree, the defendants are before

V n this ..c:o_1irt.

6. Having regard to the findings recorded by

the leaned trial judge on the two main issues i.e.. the

quit notice as well as entitlernent of the plaintiffs for

vacant possession, }\/Ir.ArVi.nd Desai learned counsel

-9″

appearing for the defendants would submit’. that the quit

notice which is issued under Section 106 of the

is iliegal. He further submits that _

contains an arbitral clause. Hence, the.’ques:ti_on: of t1r_:1’e’> it

plaintiffs initiating ejectment “pro:cee*ding_s’-. VWou1:d__ liifft

arise. He further submits without anyi’

evidence on record, learned…trial ‘judge determined
the damages at submits that in the
absence of ;d€:t€rrnination is
impermis;s’ib§e., the plaintiffs are

not t]riei”ov.tri”e:prs of the suit schedule property.

for the plaintiffs would

suppvort thej udgmeiit and decree passed by the learned

.A trial submits that the notice is in conformity

._§{}.itl1 of the ‘l’.P.Act. He further submits

1’t_is’not open for the defendant to question the title

it it oif-._the’ plaintiffs once having put in possession by the

ulpfather of plaintiff No.1. Insofar as the arbitral clause is

concerned, he submits that notwithstanding the fact
that such a defence was taken in the written statement,

an application ought to have been moved by the

mi
:;

–l{}m

defendants under Section 8 of the Arbitration Act and

sought. for stopping of the proceedings. Hence,4.iti~-igsnot

open for the defendants now to contend

itself is not rnaintainable, becausetof the *

Insofar as the damages are eor1ieeri[1_’ecl’i; hie_s11l:)rnit’s..tliat

if the defendant Vacates the”‘rp’rope1″tly thee’

plaintiffs would forego thelmelai-ni -..darnages as
determined by the learned _

8. r_egar_d’totltheféiontentions urged, the

following pointstwoiild arise for eonsideration:

hi}, it ._ V plaintiffs’ suit is to be non«

ll _ udder Section 106 of the T.P.Act’?

A. \lVh’et’r1er the judgment and decree passed
by the learned trial judge warrants

‘ ‘ interfe renc e’?

~~ V Whether the learned trial judge was
it justified in determining the damages and

mesne profits at Rs.85.00 lakh?

iv) Whether the suit. is maintainable in View of

the arbitral clause in the lease agreement?

“EL

9. Point Nozl: Insofar as quit notice is

concerned, we are of the View that Section

T.P.Act is watered down by the amendment
the said provision. What _is~..reqLiired”‘i–is llo1’i}yyll’v..a ‘
termination notice to be issiied<.a17:di' it been

Learned trial judge has dealtwith the of the

matter extensively at .parapV.il':-{of the2juldgn'ien't:. It is to
be noticed that the possession of
the suit schedule to the lease
agreement" a monthly rent of
Rs.4ooi/mifiaily'heifer:'i–a_:j§elfi§d"' five years. But the
to renew the lease deed.

In the circttrnstances, the plaintiffs have issued a notice

onl:c,j6l’.3:,,’$O03 tol”all”‘thle defendants under Section 106 of

the” notice that the entire area which is

leased of the defendants is 7121 Sq.Mtrs.

7-which more than 14 Sq. Mtrs. We also notice that
l.”ll.Anot.\yithstanding the service of notice under Section 106
the T.P.Act, the belated reply was issued on

if 31.3.2003 admitting the tenancy and payment of rent to

plaintiff No.1, but denied the plaintiffs title to the suit

_§x

5…;

property and the quit notice issued is not a valid notice.
It is relevant to extract Section 106 of the

under:

“Sec.106{I} : In the absence ofCon»tr{cic’t- it

local law or usage to the _contf*afy..or local.
or usage to the contrargj,’-adieasetyhof ‘
property for a_gr_iculi:urql.VVV:Ao.r_ ‘xnantlfctcturiiilg
purposes shall be-i.:eZr3e’n’iedVj’ etlease from
year to year, terrntnetble,i’v’oVr{V: either
lessor or:..les:se.e, and a
lease :.of””p_rop’ei=’ty for any other
purioose, (:1 lease from
on the part of
eithef «. lessorf by fifteen days’

notice; *1-‘.. a

said provision is read, the quit notice

dated”-.6.vf3.’2C03:=.clearly indicates that the said notice is

served “on Dayanand Pai who according to the
“piainitiffs was sub–lessee under defendant. No.4. We are
the View that the termination notice under Section

D» of the Act cannot. be faulted. It is also not brought

to our notice as to how the notice under Section 106 of

W13”

the T.P.Aet is bad in law. The Apex Court in the case
of M/s Nopany Investments {P.} Ltd., ¥’,Sae£f:ti:e3{ch
Singh (HUF) reported in AIR 2008 so
that no notice to quit is
the T? Act in order to enable
decree of eviction againstthje’-.apbe11ant._V has’: i
also been expressed in the’V.dec.i’s’idr1,Q.f t.}’i.€”‘r°*xp€i’:{§ Court in
case of Vflhanapal Ammal {AIR
1979 SC .the”V§reas0ning given by
the said issue and the
evidence, the findings recorded
by theitriali “said issue cannot be faulted.
Herice,_ accordingly.

1 No.2: This takes us to the next

qij’estiO:n’vi:egarding the award of damages. In this

“rrcg_ard’; the defendants are on firm footing. The

hdiscussion regarding awarding of the damages is to be

it dflifound at para 21 of the judgment of the learned trial

judge. We are constrained to observe that the claim

made by the p1a.intii”fs to the extent of Rs.85.00 lakh has fr,

/cg
g,

.a~fi””MWM

44-

been granted in its entirety. The perusal of the” said

reasoning does not indicate as to on what. pI’€I11’l.$if3««.._l,’li!.v(3

learned trial judge has come to the conelus_iLir1 ‘

plaintiffs are entitled to damages._at the ll

lakh. No evidence was let~in eitliler bvtllielplaiiintiff

the defendants in supportllofrtlie claim ‘fare if

entitled for a sum of d’a:.rnagels’or not. The
learned trial judge plaintiffs
contention line square foot
fetched an? per sq.ft and hence
lakh. ‘Whenever
damagels.ia1’.e evidence has to be

letwinlqy the “plaintiffsv.in”‘ ‘support of their claim and the

‘ll”=defer1.da:r1ts”-are required to lead evidence denying the

averrnents; ” llli”..vd_}i’€d. no such exercise appears to have

been! it We are of the view that the said

xi'”.__lVdetemiination of damages at Rs.85.00 lakh itself is

_ witliout any basis which warrants interference by this

CGt,11’t and hence, answered accordingly.

” , Atheéplaintiiff has

i§3_

12. Point No.3: This takes us to the defence

taken by the defendants. It is not in dispute

father of the plaintiff had put the

possession of the suit property__p.ursua_.–n”t””ta’_’:t.he

l’eas.e ” ”

deed of the year 1955. In fact, fact

admitted by the defendant_:’1;h_ems’e1yespin’th’eir.. replyf’

notice. It is also not in — ..t,h¢E arbitral
proceedings, the suit’ ‘the share of the
first plaintiff… property was
leased in the father of the
first flthevilew that it is not open to
the of the plaintiffs. The only
quest_ionVyffl1iVc11w is to be looked into is, whether

initiated proceedings and was legally

We are of the View that, it is not open

for-‘..__the’ defendant to contend that the plaintiffs do not

nhaveu ‘title. Moreso, having regard to the fact that the
if ‘~_Vp’r–operty in question was leased by the father of the first

” -“plaintiff. Another reason as to why the defendant

cannot deny the title of the plaintiffs is that, even after

the property fell to the share of the first plaintiff in an

… ”

45″

arbitral proceedings, the defendant has been paying the
rents to the first plaintiff. This is another reason as to
why that defendants cannot deny the title_.:”of=«.:lthe
plaintiffs. The Apex Court in the case
Pasricha Vs. Jagannath and others if
1976 so 2335 has observed tha{‘t,Vln§>t–¢ipéfn
defendant to deny the titlellofsjlpithe has it
been put in possession’ to the
plaintiffs. It is only the terminate the

tenancy and §i1’i’s.ti:tute1’_the The tenant

in suehwai’ iéigstdpped frornouestioning the title of
the landlordl 116 of the Evidence Act.

The Vtenanlt*::a11not that the landlord had title to

.–V.,.i.,th€[_.premises atfthef commencement of the tenancy.

s.__Ll?:1_de1’geaneral law, in a suit between landlord and

the-…tenv_a11t:t.he question of title to the leased property is

K””‘–._f:”‘irreleyan:t. Thus. we are of the View that it is not open

‘foI*-the defendants to deny the title of the plaintiffs in an

-»-ejieetment proceedings.

l8. Irisofar as the eontention regarding the

4?,

H’

ma.intainabilii:y of the suit moreso. having regard to the %

yaw “””

‘ri:u»lyi’l certified copy.

M17-

arbitral clause, we are of the View that such a defence
no doubt was taken in the written staternent.__ But

however, it appears that it was not seriously

However, learned counsel for the defenciantsrwllWoiild V’

submit that an application was’–rho’-fed,l.ll

learned trial judge for framinlg«V_ xladd’itio~naAl it

regarding maintainability of ‘theV–isuit: vr1o~vx.zex:ef’;iio’ order’

was passed. We not-me tha’t”fo.rh maintainability of
the suit, when there ari;.j.fr’aiV.,»cl.ause, such a

Contention is~v1″eqi’&ireti to be ‘tal'<ei1..,ir1_7the first instance

before't'th"estia'te«ri'ient"_lis'"tiled. indeed, Section 8
of the }'«_rbitra'ti_oiiV.l 'jg-i:_1"'c1« ..C'on.-;:iliation Act , 1996 indicates

about powder to referdparties to arbitration where there is

ll"v.,an'~i:r..arb.itra'tion agreernent. Indeed Sub Section (2) of

that an application referred to in

SLib._:–Sectio'n{l) shall not be entertained uniess it is

R""'-dacoonipanied by the original arbitration agreement or a

indeed, Sub~seotion{l) would

-«indicate that if a party so applies not later than when

submitting his first statement on the substance of the

dispute, refer the parties to arbitration. In the case on

<2?

.. if ‘ ‘ft “W

-§g_

hand. we notice that the defendant has not made any

application before filing a written statement that

an arbitral clause and the matter requires to be V’

to arbitrator. It is only a defen.ce~ taken vvritteii

statement. The defendant

application under Section» sand it

Conciliation Act to oust the” Civil
Court. It was open insist before the
learned trial to out before
the trial V the view that the
dfifefl linlatter adjudicated before
the arbitrator’. once a party subjects

itseifto the”=ju’risd’iction”‘”of the court and the decision

“C-goes.. {against it cannot take up a contention in a

supelricorf’»court__that it had no jurisdiction. Hence, we

are the that it is not open for the defendants to

contention that the Civil Court does not have

_ «jurisdiction to adjudicate the eviction proceedings.

14. Having said so, we are of the View that the
judgment and decree passed by the learned trial judge

does not call for interference on three points. Insofar as

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damages are concerned, we are of the View that the
entire exercise has been done without. evidenee..an’d,_is

liable to be interfered.

I5. Learned counsel appearirig; for-:
submits that if the defendants larehto
schedule property within a re~a:s’onable” they yvould
not press their claim .for…_

16. Mr..Aravind~’i3esai csossinsel appearing
for the thatlayears time may be
granted” “‘deliyer”‘vaeant possession. It is
broughtto the defendant is not carrying

on any operatvions peftrol and diesel since last two

;p_We…_are f’)’fVl.’A”1’€v View that the time sought for by

l’ear’n:_ed.4″e.ounsel for the defendants certainly cannot

be _§rant.ed’:’1–.l1aving regard to the fact that they have

l<._stoppe"d_ their operation. Under the circumstances, we

the View that the defendant. is liable to quit and

deliver vacant possession of the suit schedule property

on or before 31.3201 1. Hence, the following order:

~2()v

The appeal is accepted in part. T he judgment and
decree insofar as it relates to awarding of of
Rs.85.00 lakh is set. aside. The findings H
learned trial judge on other issues «.
and the claim of the

mesne profits stands dismissed.

The defendantVis.__graritedlg.:'tiriie._'till 3'1'.3".l2011 to
quit and deliver vacant: to the

following eondit.f.olf\s:

i) “file an undertaking

._ t;his”eo’u–rt-that it shall quit and deliver

A on or before 31.8.20} 1.

‘jjj ._Thelljnd«ertaking shall include that they shall
“drive the plaintiff in filing the execution
gllfirioeeedings. They shall also not create third

T party rights.

*iii) The defendants shall pay the agreed amount
for use and occupation till 31.3.2011. This

grant of time is subject to defendant filing an

/ ‘ 4’: ‘V

}’,.,4 3 K

W

MJIT

.:..

affidavit w1’t.hin 21 period of four weeks__f1’om
the date of receipt of a copy of this

Appeai Stands disposed of accordingly?’-._::. %

JUDGE
sd/..:

JUDGE

8*

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