M/S.Bohemian Destinations Pvt Ltd, v. R.Balakumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 29TH DAY OF APRIL 2022 THE HON'BLE MRS. JUSTICE V. BHAVANI SUBBAROYAN A.No. 4038 of 2021 in C.S.No. 157 of 2011 and C.S.No. 54 of 2015 C.S.No. 54 of 2015 :- R. Balakumar, No.3, Crescent Street, ABM Avenue, Raja Annamalaipuram, Chennai - 600 028.

... Plaintiff -VsBohemian Destinations Pvt. Ltd., Rep.by its Managing Director, Mr. N.G. George, No.7, Khader Nawaz Khan Road, Chennai - 600 006.

... Defendant Civil Suit praying that this Hon'ble Court be pleased to pass a Judgment and Decree against the Defendant ;

a) Directing the Defendant to pay the a sum of Rs.1,13,69,770/- to the Plaintiff ;

b) Directing the Defendant to pay the cost of the suit.

C.S.No. 157 of 2011 :- M/s. Bohemian Destinations Pvt. Ltd., Rep.by its Managing Director, Mr. N.G. George, No.7, Khader Nawaz Khan Road, Chennai - 600 006.

... Plaintiff -VsR. Balakumar, No.3, Crescent Street, ABM Avenue, Raja Annamalaipuram, Chennai - 600 028.

... Defendant Civil Suit praying that this Hon'ble Court be pleased to pass a Judgment and Decree a) Directing the Defendant to pay a sum of Rs.32,00,000/- as compensation and damages to the Plaintiff on account of the loss suffered till date by the Plaintiff and further directing the Defendant to pay a sum of Rs.1,00,000/- per Month as future damages and compensation from the date of filing of the suit.

b) Directing the Defendant to strictly adhere with the terms and conditions entered between the Plaintiff and the defendant in the Lease Agreement dated 30/4/2008 in respect of the property bearing Old No. 38, New No.64, Rukumani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090.

c) Directing the Defendants to sign all the papers concerning the approval of the building for commercial purpose to submit them to the Corporation of Chennai and to take all necessary steps for sanctioning the commercial approval in respect of Old No. 38, New No.64, Rukmani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 90.

d) Declaring that the Defendant is not entitled to collect rents from the Plaintiff for the period from July 2008 in respect of premises bearing Old No.38, New No.64, Rukmani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090. e) Declaring that the Lease Deed executed on 30.04.2008 between the Plaintiff and the Defendant is binding on the Defendant in respect of the premises bearing Old No.38, New No.64, Rukmani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090. f) a Permanent Injunction restraining the Defendant, his men, servants, agents and all persons claiming under him from claiming the monthly rent from the Plaintiff in respect of the premises bearing Old No.38, New No.64, Rukmani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600,090. g) Directing the Defendant to pay cost of the entire proceedings.

A.No. 4038 of 2021 :- M/s. Bohemian Destinations Pvt. Ltd., Rep.by its Managing Director, Mr. N.G. George, No.7, Khader Nawaz Khan Road, Chennai - 600 006.

... Applicant -VsR. Balakumar, No.3, Crescent Street, ABM Avenue, Raja Annamalaipuram, Chennai - 600 028.

... Respondent Application praying that this Hon'ble Court be pleased to amend the plaint as per the details furnished herein under in the above suit in C.S.No.157 of 2011.

This application coming on this day before this Court for hearing in the presence of Mr.S.L.Sudarsanam, Advocate for the applicant herein and Mr.R.Parthasarathy, Advocate for the Respondent herein and upon reading the Judges Summons and the Affidavit of S.Srinivasa Gopalan filed herein and this Court having observed that the Plaintiff / Applicant herein has not given any valid reasons for his application seeking for amendment and on perusal of records, it is seen that the suit has been filed in the year 2011 and the applicant seeks for amendment in the year 2021, the application has not chosen to file an amendment application earlier for the reasons best known

to him even at the time of filing of counter claim by other side, the applicant has not chosen to file Written Statement or any other counter claim before this Court regarding the claim now made and in view of the above facts and circumstances of the case and considering the submission made by the learned counsel on either side and in view of the Judgment of the Hon'ble Supreme Court, this Court is not inclined to allow this application for not being diligent in defending the case and filed without any valid reason, It is ordered as follows :- That the A.No. 4038 of 2011 be and is hereby dismissed,

2. That there shall be no order as to costs.

WITNESS THE HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI, CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 29TH DAY OF APRIL 2022.

Sd/- ASSISTANT REGISTRAR (O.S-II) //Certified to be true copy// Dated at Madras this the day of 2022. COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.

ED 06.07.2022 A.No. 4038 of 2021 in C.S.No. 157 of 2011 and C.S.No. 54 of 2015

ORDER

DATED : 29.04.2022 THE HON'BLE MRS. JUSTICE V. BHAVANI SUBBAROYAN FOR APPROVAL : 06.07.2022 APPROVED ON : 07.07.2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.04.2022

CORAM:

THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN A.No.4038 of 2021 in C.S.No.157 of 2011 and C.S.No.54 of 2015 M/s.Bohemian Destinations Pvt. Ltd., Rep. by its Managing Director, Mr.N.G.George, No.7, Khader Nawaz Khan Road, Chennai - 600 006.

... Applicant Vs.

R.Balakumar ... Respondent Prayer:

Application filed under Order XIV Rule 8 of O.S. Rules R/W Order VI Rule 17 & Section 151 of CPC, to amend the plaint as per the details furnished herein under in the above suit in C.S.No.157/2011. For Applicant : Mr.S.L.Sudarsanam For Respondent : Mr.R.Parthasarathy

O R D E R

The applicant/plaintiff has filed Application No.4038 of 2021 seeking for amendment and the details of the amendment are as follows:

1) In Page No.9, after the paragraph No.24 of the plaint, concerning the losses suffered by the plaintiff, the following averments should be inserted as new paragraph No.24A in the plaint which as follows:

24A) Due to the deliberate inaction of the defendant, the plaintiff suffered huge losses as the plaintiff had made an investment of Rs.75 lakhs taken as loan with interest of Rs.75,000/- payable per month and principal repayable @ the end of 10 years based on the following business plan. a)The monthly rent payable by the plaintiff to the defendant of Rs.2,25,000/- per month for the first 5 term of years and Rs.2,81,250/- per month for the second 5 term of 6th - 10th year; b)The monthly income receivable by the plaintiff by way of license fee/ percentage of turn over from the licensees - MG 3,90,000/- (c) Fixed profit per month estimated for the plaintiff Rs.3,90,000 - 2,25,000 = 1,65,000 / per month (Fixed) Estimated loss of opportunity and investment suffered by the plaintiff:

1) A sum of Rs.1,65,000/- x 120 months = Rs.1,98,00,000/- 2)Investment towards infrastructure development - Rs.75,00,000/- The minimum loss to the plaintiff is Rs.1,98,00,000/- which is a fixed loss of estimated profit and Rs.75,00,000/- towards investment which amounts to Rs.2,73,00,000/-. Therefore, the total minimum loss suffered by the plaintiff is Rs.2,73,00,000/-. It is pertinent to note that the plaintiff has further losses incurred which are as follows:

a) Rs.5,50,000/- (-) Rs.2,25,000 = Rs.3,25,000/- per month (projected on turnover).

Total loss is Rs.3,25,000/- x 120 months = Rs.3,90,00,000/- (less Rs.1,98,00,000) b) Interest on investment of Rs.75,00,000/- for 10 years which amounts to Rs.90,00,000/-.

2) In Page No.9, at paragraph No.25 of the plaint, regarding valuation of the suit, it should be modified as: "25.The plaintiff values the suit at Rs.2,73,00,000/- (Rupees One Crore Sixty Five Lakhs only) and pays a Court fee of Rs.2,76,525/- under Sec.22 read with Order II, Appendix 1(A) of High Court Fees Suit Valuation Act, 1955 in respect of prayer (A);"

3) After the cause of action paragraph No.27 of the plaint, in Page No.10, in the prayer column, the prayer (A) has to amend as:- "(A) pass a Judgment and Decree directing the Defendant to pay a sum of Rs.2,73,00,000/- (Rupees Two Crores Seventy Three Lakhs only) as compensation and damages to the Plaintiff on account of the loss suffered till date by the Plaintiff and further directing the Defendant to pay interest at the rate of 24% p.a. on it from the date of filing of the suit till the date of realization;

4) In prayer column, after prayer (B), remove the prayer (C).

2. Learned counsel for the applicant/plaintiff submitted that the applicant/plaintiff had entered into a registered Lease Agreement with the defendant for commercial use of the premises at Old No.38, New No.64, Rukmani Street, Kalakshetra Colony, Besant Nagar, Chennai - 90 commencing 1.7.2008 for a period of ten years. 3.It is relevant to extract the Clause 1 of the Lease agreement: "1.The lessee is involved in the business of creating lifestyle destinations with a shop-n-shop concept operating several outlets including apparel food, recreation and others by association/licensing with various agencies/companies with expertise in the respective fields".

4. According to the applicant/plaintiff, it was understood between the plaintiff and the defendant in the Lease deed in Clause 6.61 that the defendant would provide power supply as required by the plaintiff and a generator for back up power supply would also be provided by the defendant which stated as follows:

"6.61. The Lessor shall provide sufficient power from TNEB to meet the requirements of the Lessee and sufficient power back up by providing a generator of the required capacity to meet the requirements of the lessee."

5. The applicant/plaintiff further submitted that as no power supply nor back up generator had been provided making the premises unusable by the plaintiff, it was not at all possible for the plaintiff to operate the premises till December 2008 when the defendant provided sufficient power supply as well as the generator and hence no rent was payable from July 2008 for this period.

6. According to the applicant/plaintiff, the defendant provided the power supply and back up generator only by December 2008 and thereon the plaintiff was able to start using the premises from January 2009 and hence the rent period was to commence from January 2009 and rent for January 2009 was paid as rent in advance in August 2008 and rent for February 2009 was paid on 13.03.2009.

7. The applicant/plaintiff states that to the shock and surprise of the plaintiff, the defendant did not bother to act on obtaining commercial sanction making it impossible for the plaintiff to develop on his business plans after having invested large amounts of money due to the constant harassment from the authorities due to the inaction of the defendant in not cooperating by obtaining the necessary commercial sanctions to enable the plaintiff to carry on with the commercial activities, the purpose for which the property was leased out by the plaintiff.

8. According to the applicant/plaintiff, another notice was received from the Corporation of Chennai in October 2009 which also was brought to defendant's notice however the defendant once again chose to do nothing about this notice. As a result, a third notice was issued in March 2010 by the Corporation of Chennai and the Corporation proceeded to seal the life style store.

9. The applicant/plaintiff submits that inspite of having spent almost Rs.75,00,000/- in renovation, interior works and site improvement works, the plaintiff was unable to operate their business freely, firstly having been delayed for over six months due to the lack of TNEB power and a generator and then from April 2009, the plaintiff face constant threat of closure and harassment from the authorities and hence are able to only make use of less than 50% of the leased premises and that too with a lot of difficulty.

10. The applicant/plaintiff had filed the above suit against the respondent/defendant before this Court seeking various reliefs. As a counter blast, the respondent/defendant herein had filed the suit in C.S.No.54 of 2015 claiming money against them before this Court:

(A) pass a judgment and decree directing the defendant to pay a sum of Rs.30,00,000/- as compensation and damages to the plaintiff on account of the loss suffered till date by the plaintiff and further directing the defendant to pay a sum of Rs.1,00,000/- per month as future damages and compensation from the date of filing of the suit till the date of realization; (B) pass a judgment and decree directing the defendant to strictly with the terms and conditions entered between the plaintiff and the defendant in the Lease Agreement dated 30.4.2008 in respect of the property bearing Old No.38, New No.64, Rukumani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090; (C) pass a judgment and decree directing the defendant to sign all the papers concerning the approval of the building for commercial purpose to submit them to the Corporation of Chennai and to take all necessary steps for sanctioning the commercial approval in respect Old No.38, New No.64, Rukumani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090;

(D) pass a judgment and decree declaring that the defendant is not entitled to collect rents from the plaintiff for the period from July 2008 in respect of premises bearing Old No.38, New No.64, Rukumani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090;

(E) pass a judgment and decree declaring that the Lease Deed executed on 30.04.2008 between the plaintiff and the defendant is binding on the defendant in respect of the premises bearing Old No.38, New No.64, Rukumani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090;

(F) pass a judgment and decree for a permanent injunction restraining the defendant, his men, servants, agents and all persons claiming under him from claiming the monthly rent from the plaintiff in respect of the premises bearing Old No.38, New No.64, Rukumani Street, Kalakshetra Colony, (Tiger Varadhachary Road), Besant Nagar, Chennai - 600 090.

11. It is very necessary to extract the following Clauses of the Lease agreement:

"5.Duration extension and termination of lease 5.1.This Lease deed shall initially be for a period of five years and is renewable at the sole option of the lessee for a further period of 5 years only.

5.2.The lease will automatically stand extended after the expiry of the first 5 (five) year term unless notified to the contrary in writing by the lessee three months prior to the date of expiry.

5.3.That the LESSOR shall not be entitled to terminate this lease at any point in time either during the initial period of five (5) years and/or subsequent term, of 5 years as

discussed in Clause (2), as long as the LESSEE complies with the terms and obligations of this lease agreement and continues to meet its financial obligations as detailed in this agreement. Incase if default by the LESSEE, the LESSOR shall give due notice to the LESSEE, with 30 days time to rectify such breach or default. In the event such breach or default is not rectified during the stipulated 30 days, then the LESSOR shall be entitled to give Three months notice after the expiry of the abbe 30 days to the LESSEE for termination of this lease agreement."

12. The initial term of lease with the defendant was from 1.7.2008 which expired on 30.06.2018. Under the lease, the applicant/plaintiff was entitled to source out agencies, companies or associates and enter into either license agreement or similar agreements based on the requirements. The applicant/plaintiff made the leased premises suitable for commercial purpose by making necessary improvements and changes by investing a sum of Rs.75,00,000/- towards infrastructural development with a belief that the lease deed would be honoured for a period of ten years in order to get commercial returns for the investment made.

13. The following are the Licensees who were under the plaintiff and the estimate of loss is as follows:

(a) Auroville - 12/3/2009-MG of 1,50,000/ per month or 10% of turnover (operating till today);

(b) Mercado - 7/5/2009-MG of 50,000/ per month or 9% of turnover (operated till 2016);

(c) Coffee day - 22/12/2008-MG of 45,000/ per month or 15% of turnover (operated only two months); (d) Auromode - 5/4/2009-MG of 35,000/ per month or 10% of turnover (operated for 1 year) and (e) Selen Spa - 6/3/2009-MG of 1,10,000/ per month or 12% of turnover (had to terminate half way through set up due to corporation)

14. The applicant submitted that pending the above suit, the applicant/plaintiff had vacated the leased premises on account of huge loss and harassment made by the Corporation Officials due to non availability of valid license for the building for commercial purposes which now cannot be provided by the defendant herein. Therefore, the prayer of relief (C) is not essential to the plaintiff for the present situation and hence the relief (C) is not vital to the case on hand at present and therefore it said prayer of relief (C) should be deleted / strikeout from the above plaint. Hence, the applicant to take out this amendment petition to amend the plaint with regard to loss of damages pertaining to prayer relief (A) and irrelevant prayer of relief (C).

15. Learned counsel for the applicant has relied upon the following judgments of the Hon'ble Supreme Court in support of his contentions: (a)In the case of Hi. Sheet Industries vs. Litelon Limited reported in 2006 SCC Online Mad 1077.

(b)In the case of Baldev Singh and Others vs. Manohar Singh and Another reported in (2006) 6 SCC 498.

(c)In the case of Madhav Housing Private Limited and Others vs. Suchita Baburao Chavan reported in 2019 SCC Online Bom 5952. (d)In the case of Indian Agro & Recycled Paper Mills Association vs. Tafcon Projects (India) Pvt. Ltd. (TAFCON) and Others reported in 2020 SCC Online Del 1785.

16. Per contra, Mr.R.Parthasarathy, learned counsel appearing for the respondent/defendant vehemently denies the contents of the affidavit in support of the instant application and submits that the application is liable to be dismissed in limine as not maintainable and vexatious.

17. According to the learned counsel for the respondent/defendant, the instant application has been filed seeking enhancement of the damages in prayer (a) above from Rs.30,00,000/- to Rs.2,73,00,000/-, i.e. an increase of Rs.2,43,00,000/-, 10 years after the suit has been filed and when

evidence in the suit has already commenced. Through the instant application, applicant/plaintiff is seeking to enhance its monetary claims against the defendant, without providing any cogent reasons for the same. The instant application is bereft of any justification for the enhancement of damages as sought for in paragraph 15 of the application and is a mere reiteration of the averments contained in the plaint. It is submitted that all the material claimed as the basis for the present application were already available with the applicant at the time when the suit was filed in 2011 and hence, the prayer sought for in the present application is clearly barred by limitation.

18. The respondent/defendant submitted that the suit itself has been filed on the very same grounds and therefore, there is no reason why the instant application ought to be entertained at such a belated stage.

19. The respondent/defendant further submitted that the instant application has been filed only as a counter blast to the order passed in A.No.1652 of 2021 in C.S.No.54 of 2015 in which this Court had permitted the respondent/defendent to file additional documents and which are vital to proving respondent's prayer seeking recovery of a sum of Rs.1,13,69,770/- from the plaintiff herein in the said suit.

20. Learned counsel appearing for the respondent/defendant has relied upon a judgment of the Hon'ble Supreme Court in the case of Revajeetu Builders and Developers vs. Narayaswamy and Sons and Others reported in (2009) 10 SCC 84. The relevant paragraphs of the said judgment is extracted hereunder:

58.In B.K.Narayana Pillai v. Parameshwaram Pillai and Anr. MANU/SC/0775/1999 : (2000) 1 SCC 712, a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused.

59. Setting aside the orders refusing amendment, this Court stated:

The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach

should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

60.In Suraj Prakash Bhasin v. Raj Rani Bhasin and Ors. MANU/SC/0045/1980 : (1981) 3 SCC 652, this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject- matter of the suit should not be changed by amendment.

61.The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.

62.The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.

63.The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.

21. Learned counsel appearing for the respondent/defendant submits that based on the aforesaid judgment, the application has necessarily to be dismissed.

22. Heard Mr.S.L.Sudarsanam, learned counsel for the applicant/plaintiff and Mr.R.Parthasarathy, learned counsel for the respondent/defendant and perused the materials available on record.

23. Earlier an application No.4124 of 2017 in C.S.No.157 of 2011 was filed seeking for clubbing of the suits in C.S.No.157 of 2011 and C.S.No.54 of 2015. This Court by its order dated 29.10.2018 allowed the application and directed the Master to conduct joint trial in respect of both suits on a day to day basis to complete within a period of three months from the date of first hearing.

24. Further, another application No.3640 of 2019 in C.S.No.157 of 2011 was filed to receive the documents therein, as documents on the side of the plaintiff in C.S.No.157 of 2011. This Court by its order dated 13.11.2019 allowed the application and directed the Master for recording evidence and also directed the parties to produce the original document before the learned Master.

25. On going through the typed set of papers, it is seen that the counter suit viz., C.S.No.54 of 2015 has been filed by the lessor merely as a counter blast to advance a money claim as against the lessee as against the original suit viz., C.S.No.157 of 2011 and in one suit issues have been framed and another suit issues have not been framed (Both suit raise money claims, and other issues that overlap). A perusal of the pleadings in C.S.No.157 of 2011 is to the effect that the lessor has not complied with various obligations set out in the Lease Deed dated 30.04.2008. The lessor had initiated proceedings for recovery of rent which have travelled to the Supreme Court in S.L.P.No.1435 of 2012. By order dated 01.05.2012, the S.L.P. had been dismissed by the Supreme Court. Pursuant to the order of the Supreme Court, the lessor had moved the Rent Controller who had directed the lessee to vacate the premises by its order dated 15.06.2012 and

possession was taken by the lessor with great difficulty. In C.S.No.54 of 2015, Written Statement has been filed in the year 2017. This Court had dismissed the application for rejection of plaint in Application No.95 of 2018 in C.S.No.157 of 2011 stating that the question as to whether the tenant is entitled to the benefit of Clause 8 of the Lease Deed can be decided only after the evidence is let in by the parties on the controversy.

26. Based on the aforesaid judgment, it can be seen that the plaintiff/applicant herein has not given any valid reasons for his application seeking for amendment.

27. On perusal of records, it is seen that the suit has been filed in the year 2011 and the applicant seeks for amendment in the year 2021, the applicant has not chosen to file an amendment application earlier for the reasons best known to him. Even at the time of filing of counter claim by other side, the applicant has not chosen to file Written Statement or any other counter claim before this Court regarding the claim now made.

28. In view of the above facts and circumstances of the case and considering the submission made by the learned counsel on either side and in view of the judgment of the Hon'ble Supreme Court, this Court is not

inclined to allow this application for not being diligent in defending the case and filed without any valid reason. Accordingly, this application is dismissed. There shall be no order as to costs. Sd./- V.B.S.J., 29/04/2022 //Certified to be true copy// Dated at Madras this the day of 2022. COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.