CHANDRIKA ENTERPRISES BANGALORE Vs. G VITTALA RAO

JUDGEMENT

(1.) these are landlord's revision petitions against a common order dated 30-9-1988 in h.r.c. nos. 191 of 1984 and 193 of 1984 and three other cases which had been filed by the petitioner under Section 21(1)(h) and (j) of the Karnataka Rent Control Act, 1961 (hereinafterwards referred to as 'the act') praying for eviction of the respondents from the petition schedule property namely portions of the premises bearing No. 5 (old No. 16/3) situated in ii cross, ramakrishnapuram, Bangalore. By the said common Order, the trial judge dismissed all the eviction petitions. Being aggrieved by the said Order, the petitioners have filed these revision petitions. Since the landlords are common in these petitions and the property is different portions of the same premises in the two petitions, and common evidence has been recorded by the trial court relating to all the five petitions in h.r.c. No. 191 of 1984, and all the petitions have been disposed off by a common order by the trial court, a common order is hereby passed in these two revision petitions.

(2.) the facts which have led to these revision petitions may briefly be stated as follows: the petitioner which is a partnership firm represented by its managing directors which is common in all the five petitions, sufficiently stamped. The trial court held that the present suit was not based on the original cause of action but on the promissory note and since the promissory note was not sufficiently stamped dismissed the suit. The plaintiff being aggrieved by the judgment and decree of the trial court has preferred this civil revision petition. Learned counsel for the petitioner Mr. Srivatsa submitted that while it is not possible to place any reliance on the promissory note since it is insufficiently stamped, reliance can be placed on the acknowledgment of debt with respect to the consideration receipt dated 8-12-1987. He submitted that the consideration receipt is an independent document and need not be read along with the promissory note. He also submitted that the consideration receipt is sufficiently stamped and therefore the receipt is undoubtedly an acknowledgment of debt. Learned counsel for the plaintiff-petitioner further submitted that the defendants were placed ex parte and the evidence of the plaintiff that there was an acknowledgment of debt by the defendants would be sufficient to decree the suit as prayed for in the absence of any defence by the defendants. He further submitted that the consideration receipt was stamped separately and it should be considered independently and reliance ought to have been placed on the document, notwithstanding the promissory note being inadequately stamped. Learned counsel for the petitioner relied on a Judgment in Mohammad Jamal Saheb v Munwar Begum . This was a case where the plaintiff instituted a suit on the basis of a promissory note as well as receipt. A defence was raised that the promissory note was not sufficiently stamped and therefore was not admissible in evidence. It is also stated that since the suit is based on the promissory note, it is liable to be dismissed. The court held that though the loan and the execution of the promissory note may be contemporaneous, the document still can be given as a collateral security or as a conditional payment of the loan and in such a case it cannot be said that the promissory note itself is the contract of loan. If the allegation made by the plaintiff in the plaint that the promissory note was executed as a collateral security is true then he can certainly sue on the debt apart from the promissory note as the two causes of action are distinct and separate. The court further held that the defendant cannot be allowed to walk away with the money simply because the promissory note is not sufficiently stamped and that it is inadmissible in evidence. The court further held that the defendant is liable to refund the amount which he took from the plaintiff on the theory of money had and received. The learned counsel also relied upon a Judgment in Khitish Chandra Sahu v Rajkishore Sahu , where the court has held as follows:

(3.) the case of the respondent in h.r.c. No. 191 of 1984 has been summarised in para 5 of the impugned order. It reads as follows: "it is true that the respondent herein is the tenant in respect of the petition schedule property. It is denied that the petitioner has purchased the petition schedule property for the purpose of starting the lodging business. It is false to contend that the petitioner had requested this respondent to vacate the premises. The alleged need of the petitioner is neither reasonable nor bona fide. It is not admitted that the petitioner has made all arrangement to start the proposed project. It is false to contend that the petition schedule building is in a dilapidated condition. This respondent has spent more than Rs. 15,000/- towards the renovation of this premises with the consent of the landlord. The petitioner has no intention to start any lodging business in this building. Its intention is only to evict this respondent since the respondent did not oblige to the demand of the petitioner to pay more rent. The respondent has no other source of living, except the business being run in the petition schedule premises. In the circumstances, if an order of eviction is made, he will be thrown to destitution. On the other hand, if this petition is dismissed, no hardship may be caused to the petitioner. For these reasons, this petition may be dismissed. This respondent has also filed an additional objections contending that the petition is bad for non-compliance of Section 69 of the Indian Partnership Act.