OS.99/2013
II ASCJC:VSP 1
In the Court of the II Addl., Senior Civil Judge:
Visakhapatnam
Present:Smt. N.Padmavathi, II Addl., Senior Civil Judge, Visakhapatnam.
Wednesday, the 27 th day of May, 2020
O.S. 99/2013
Between:
1.Laveti Satya Rao, S/o late Sri Papayya, Hindu, aged 69 years, residing at Flat NO.2, Sea Shells Apartments, 11-2-1, Waltair uplands, Near Governor’s Bungalow, Visakhapatnam- 530 003.
2.Laveti Rama Rajyam, W/o Sri Laveti Satya Rao, Hindu, aged 65 years, residing at Flat NO.2, Sea Shells Apartments, 11-2-1, Waltair uplands, Near Governor’s Bungalow, Visakhapatnam-530 003. …Plaintiffs A n d:
1.Vodafone Idea Limited (Formerly “Vodafone ESSAR South Limited” & Vodafone Mobile Services Limited”), represented by its Managing Director, Registered office at C-48, Okhla Industrial Area, Phase-II, New Delhi-110020. *Amended as per order dated 01-2-2019 passed in I.A. 116/2019
2.Vodafone Idea Limited (Formerly “Vodafone ESSAR South Limited” & “Vodafone Mobile Services Limited”), represented by its Senior Manager-Legal, Andhra Pradesh Circle, 6th floor, Varun Towers-II, Begumpet, Hyderabad- 530 016. **Amended as per order dated 01-2-2019 passed in I.A. 116/2019. …Defendants
This suit is coming on 27-02-2020 for hearing in the presence of Sri G.Saibaba, M.Srinivas, K.Appa Rao, D.V.S.N.Raju, Advocates for the plaintiffs and of Sri C.S.R.M., C.S.Sekhar, Advocates for defendants and upon hearing and considering the material on record, the matter stood over for consideration till day, this Court delivered the following:
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J U D G M E N T
1.This is a suit filed by plaintiffs 1 and 2 against defendants 1 and 2 seeking the relief of recovery of Rs.3,87,674-78 ps. along with subsequent interest @ 24% p.a. on Rs.2,42,904/- from the date of filing of the suit to till the date of realization and for costs of the suit.
2.Case of the plaintiffs is, plaintiffs 1 and 2 are the absolute owners of the premises bearing door NO.2B1 & 2B2 situated in 1st floor of the building namely “Balaji Mangalagiri Chambers” bearing door No.9-14-4 of Waltair Road, Visakhapatnam. 1st defendant is a company registered under Companies Act, 1956 having its registered office at New Delhi.
Whereas the 2nd defendant is the circle office of the 1st defendant, having its office at 6th floor, Varun Towers, Begumpet, Hyderabad. The defendant is doing business in mobile phones, it has approached and requested the plaintiff to let out the premises bearing Nos. 2B1 & 2B2 of “Balaji Mangalagiri Chambers” situated in Waltair road of Visakhapatnam for running its showroom. After discussions and negotiations, the said premises was leased out to defendants’ company for a period of nine years on a monthly rent of Rs.75,000/-. Accordingly a registered lease agreement dated 20-9-2008 vide document No.3869/2008 was entered between plaintiffs and 2nd defendant. As per the clause 18 of the such lease agreement, in case the defendant intends to vacate the premises, earlier than the stipulated period, three months advance notice has to
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II ASCJC:VSP 3 be served on the plaintiffs. Contrary to the said mandatory clause, defendant has sent an undated letter informing that its customer service
Manager intimated the plaintiffs regarding vacation of the premises.
Defendant was contractually required to serve a proper written notice by its constituted attorney, strictly in accordance with clause-18 of the agreement. Since, no written notice is served on the plaintiffs prior to the said letter, the undated letter was not accepted and do not bind on the plaintiffs. Thereafter defendants started shifting their furniture from the leased premises to another premises. Defendant continued to occupy the leased premises till January, 2010. The vacant possession was handed over to plaintiffs on 30-1-2010. Defendant did not handover the bills and receipts related to the payment of water charges, electrical charges and maintenance charges, to the plaintiffs.
3.It is submitted that defendant was contractually bound to handover the premises in the same condition in which it was delivered to it. The survey conducted in the presence of defendant’s officials clearly reveal that leased premises was damaged during the occupation of the defendant. defendant committed breach of contract and is therefore liable to pay damages. As per clause 16 and 21 of the lease agreement, defendant is liable for damages to the property if any. Clause 16 of the lease agreement reads as follows:
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II ASCJC:VSP 4 16: The LESSEE shall be entitled to install furniture and fixtures and wooden partition cabins, as may be required. The LESSEE shall be entitled to remove and take away all such items of partitions, furniture and fixtures at the time of vacating and handing over possession of the
Schedule Property to the LESSORS. Any damages caused at the time of such removal shall be borne by the LESSEE.
Clause-21 of the Lease agreement provides that on termination of the lease, either by efflux of time or on earlier termination, the LESSEE shall deliver possession to the LESSORS in the same condition in which it was let out, subject to normal wear and tear. The LESSORS shall allow the LESSEE unhindered access to remove and take away all its equipment, furniture and fixtures.
4.It is further submitted that on 18-11-2009, a joint survey of the leases premises was conducted by a Civil Engineer in the presence of first plaintiff and Mr.Ramesh an officer and another officer from the finance department of defendant’s company. In the said joint survey the following damages were observed/noticed which required to be rectified/repaired at defendant’s cost:
i) Flooring tiles were completely damaged due to drilling for installation of various systems for the defendant’s office purpose.
ii) Partition wall constructed by the defendant was not removed/dismantled.
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II ASCJC:VSP 5 iii) Internal walls and roof were damaged.
5.The defendant did not raise any objection to the said survey report. They did not carry out repairs nor paid any amount to the plaintiffs for carrying out such repairs. Inspite of repeated reminders by the plaintiffs through registered post and fax, the defendant failed to carry out repairs to the damaged part premises, leaving no other option to the plaintiffs except to get them repaired at defendant’s risk and cost.
Plaintiffs carried out the repairs to the leased premises by spending an amount of Rs.1,76,465/-. Apart from that plaintiffs were forced to pay
Rs.15,000/- towards maintenance charges for five months to Balaji
Mangalagiri Chamber’s Owners Welfare Association, Rs.7,439/- towards electrical charges up to 31-12-2009(as per two bills). In addition to that they were forced to pay Rs.44,000/- towards penal charges for excess consumption of electricity by defendant. Plaintiffs sent a letter dated 23-3-2010 with detailed calculation showing the amount payable towards rent for the period from August, 2009 to January, 2010, expenses incurred towards repairs carried out by the plaintiffs at defendant’s risk and costs, maintenance charges, electrical charges and penal charges for excess consumption of electricity, total of it comes to
Rs.6,92,904/-. Plaintiffs adjusted the amount of Rs.4,50,000/- deposited by the defendant towards security deposit. So, the defendant is liable to pay the balance amount of Rs.2,42,904/- to the plaintiffs. Plaintiffs
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II ASCJC:VSP 6 demanded the defendant vide letter dated 23-3-2010 to pay the balance amount of Rs.2,42,904/- with interest @ 24% p.a. But defendant neither paid the amount nor sent any reply.
6.Hence, plaintiff got issued a lawyer’s notice dated 25-5-2010 demanding the defendant to pay the said amount with interest @24% p.a. within one week from the date of receipt of such notice. Failing which, it was made clear that appropriate legal action will be initiated.
Defendant received the said notice on 28-5-2010, but did not bother to repay the amount nor sent any reply. Hence, under the said circumstances having left with no other alternative, plaintiffs filed present suit. Further it is to be noted that during the pendency of the suit proceedings, the name of defendant company was changed from time to time and presently as “Vodafone Idea Limited”. Accordingly amendments were carried out in respect of the change in the name of defendant, vide orders in I.A. 116/2019 dated 01-2-2019. Hence, the suit.
7.2nd defendant filed its written statement, same was adopted by 1st defendant. They admitted about entering into a lease agreement with plaintiffs for a period of nine years on the monthly rent of Rs. 75,000/- under a registered lease deed as mentioned in the plaint. They denied about non issuance of three months advance notice to the plaintiffs as
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II ASCJC:VSP 7 alleged in the plaint. Further contended that the documents filed by the plaintiffs themselves speak about the service of notice, as per the terms of agreement. It was further contended that what all the allegations leveled against the defendant company by the plaintiffs in the plaint are false, created for the purpose of this suit. Further submitted that the vacant possession of the leased premises has been handed over to the plaintiffs in the first week of November 2009 itself, but not on 30-12-2010 as alleged in the plaint. In fact the notice of termination is sent which fact was even admitted by plaintiffs. However, the date of issuing such notice was not mentioned in the said letter addressed by defendant company to the plaintiffs. It is a human error committed by them and it was just a mistake in not mentioning the date on the said letter. However the stamps of postal authorities speak the truth with regard to date of issuing such letter by defendant company. Further submitted that the defendants have handed over the premises in the same condition, in which it was given to defendants, but not as alleged by the plaintiffs. While denying the contention putforth by plaintiffs that leased premises was damaged during the occupation by the defendants by stating it as utter falsehood, it was contended that the plaintiffs in order to lay a false claim, made all these allegations. In fact, except natural wear and tear, the property was not at all damaged as alleged by the plaintiffs. It was further submitted that a joint survey has been conducted, however in the said survey no damage has been noticed as
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II ASCJC:VSP 8 alleged by the plaintiffs, except some minor things which were already rectified before handing over the premises by the defendant to the plaintiffs, including the painting of the wall. Such facts have been suppressed by the plaintiffs for the reasons best known to them. As such, alleged cost as assessed by plaintiffs does not bind on the defendants. The assessment made by plaintiffs for arriving at the suit amount do not have any basis. Such wrong calculation was made by the plaintiffs only for the purpose of filing this suit in order to lay a false claim against the plaintiffs. In fact joint survey was never reduced into writing as alleged by the plaintiffs. It was also submitted that plaintiffs might not have spent amounts as alleged in the plaint nor laying a false claim against the defendants. They might have created and fabricated the documents without any basis. So, they are not entitled for the damages as claimed for. It was further contended that what all the calculations made by the plaintiffs about spending Rs.1,76,465/- towards costs of attending the repairs and Rs.15,000/- towards payment of arrears of maintenance charges and Rs.7,439/- towards electricity consumption charges including Rs.44,000/- towards penal charges are all false, invented for the purpose of this suit. At best plaintiffs are entitled for maintenance charges for the notice period of three months, for which period they were in possession, along with electricity consumption charges for which plaintiffs are necessarily establish their claim legitimately.
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II ASCJC:VSP 9
8.Further, it was contended that plaintiffs are bound to return the security deposit lying with them to a tune of Rs.4,50,000/-, that too by adjusting three months rent which comes Rs.2,25,000/- together with maintenance charges and electricity consumption charges for the relevant period if at all pending and are bound to return balance which the defendants are entitled, together with interest @ 18% p.a. as per trade custom and usage. In fact, plaintiffs filed the above suit only to avoid the refund of security deposit amount lying with them. As the plaintiffs, who are supposed to return the security deposit amount in the first week of November, 2009 itself did not return the same, defendants are entitled for it together with interest @ 18% p.a. Further contended that at the time of taking the premises on lease, as the defendants are the first tenants and since the building was yet to complete, its finishing work like flooring etc., plaintiffs requested the defendants to complete the flooring work. Accordingly defendants completed the floor works, for which the defendants possess necessary documents. In fact at the request of plaintiffs, defendants fixed modern glass fittings which raised the value of the leased premises. This fact was need to be considered by the plaintiffs.
9.It was further submitted that soon after the lapse of statutory notice period of three months, defendants made the premises ready for attending the minor works, though they have no obligation to do so.
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II ASCJC:VSP 10
However for the reasons best known to the plaintiffs, they did not take the premises and dodged the matter, to have a wrongful gain for themselves by causing wrongful loss to the defendants. Plaintiffs did not allow the defendants to take away their generator lying in the basement and made false complaint against the defendants to the association. As such, plaintiffs are not entitled for any rent, maintenance and electricity charges beyond the notice period of three months. In order to lay a false claim, in fact plaintiffs are suppressed the material facts borne out by record. As such, they are not entitled for the suit relief.
10.It was also contended that initially the name of the defendant’s company is ‘Vodofone Essar South Limited’. By virtue of fresh certificate of incorporation issued by the Registrar of Companies, it has changed its name to ‘M/s Vodafone South Limited’ which has subsequently merged into ‘M/s Vodafone Mobiles Services Limited’, by virtue of a scheme of amalgamation approved by the Hon’ble High Court of Judicature of New
Delhi. It is respectfully submitted that pursuing to the said scheme, form
No.INC-28 was filed with the Registrar of Companies, New Delhi.
Accordingly M/s Vodafone South Limited, by operation of law stands dissolved on 10-12-2015 and stands merged with M/s Vodafone Mobiles
Services Limited w.e.f. 11-12-2015. It was further submitted that the entire business of erstwhile Vodafone South Limited stands transferred to and vested in M/s Vodafone Mobile Services Ltd., w.e.f. 11-12-2015.
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Accordingly, by bringing such facts to the notice of this Court, an
Interlocutory application was also filed by the defendant, which is pending for consideration. Despite of having knowledge about the dissolution of erstwhile defendant company and its subsequent merger with M/s Vodafone Services Limited, plaintiffs failed to take necessary steps. So, on this score also the above suit is liable to be dismissed in toto.
11.It was further contended that there is a arbitration clause in the registered lease deed entered between the plaintiffs and defendant, wherein it was categorically mentioned that the disputes if any shall invariably be referred to an arbitrator for adjudication of the matter. As such, this Court has no jurisdiction. However defendant filed
I.A.596/2013 under Section 8 of the Arbitration Act. This Hon’ble Court has dismissed the said I.A. Aggrieved by the same, defendants have preferred CMA 44/2016 on the file of Honourable VII Additional District
Judge, Visakhapatnam, which is pending for adjudication. Though the
defendants cannot file the written statement in this suit without adjudicating their application under Section 8 of the Arbitration Act, in view of orders passed by this Court setting the defendants exparte, they filed an application along with this written statement contending that without prejudice to their rights and contentions in CMA 44/2016, the present written statement be received subject to result of CMA 44/2016.
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So, viewing from any angle, the present suit is not maintainable either under law or on facts and it is liable to be dismissed. Further contended that there is no cause of action for filing this suit and that this suit is barred by limitation. Hence prayed for dismissal of the suit with exemplary costs.
12.It is pertinent to mention here that it is an admitted fact that the application filed by defendants under Section 8 of Arbitration Act vide
I.A. 596/2013 was dismissed by this Court. Even CMA 44/2016 on the of
VII Additional District Judge, Visakhapatnam was dismissed. Aggrieved by the same defendants preferred CRP 589/2018 and the said CRP was also dismissed. So by virtue of dismissing the CRP by the Honourable
High Court and taking consideration that by filing written statement, defendants themselves submitted to the jurisdiction of this Court for adjudicating the present cause on hand. So, it is clear that whatever the contention putforth by defendants that the present suit is barred by virtue of an ‘Arbitration Clause’ mentioned in the lease agreement marked under Ex.A1, is untenable and needs no further adjudication.
13.Basing on the above pleadings on either side, the following issues were settled for trial.
I)Whether the suit claim is barred by limitation?
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II)Whether plaintiffs are entitled for recovery of suit claim as prayed for?
III)To what relief?
14.To prove the case of plaintiffs, 1st plaintiff got himself examined as
PW1 and also got examined the Manager of ‘Balaji Mangalagiri
Chambers owners Association’ by got summoning him through Court as
PW2 and got marked Exs.A1 to A28 through PW1 and Exs.A29 and A30 through PW2.
15.On behalf of defendants, the Manager of defendant company who was working in Visakhapatnam during the relevant period of vacating the premises was examined as DW1 and no documents were marked on behalf of defendants.
16.Heard.
ISSUE NO.I
17.According to the case of plaintiffs, it is on 20-9-2008 D2 has entered into a lease agreement with plaintiffs for letting out the premises belongs to plaintiffs 1 and 2 for rent @ Rs.75,000/- per month.
Accordingly, entered into a lease agreement by both parties, the certified copy of which got marked as Ex.A1. At this juncture, it is
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II ASCJC:VSP 14 pertinent to mention here that though it is the case of plaintiffs that on 20-9-2008 such a lease agreement was entered between plaintiffs and
D2, in fact the contents of Ex.A1 and the contention putforth by defendants in the written statement made it clear that such a lease agreement was entered and registered on 29-9-2008 vide document
No.3869/2008. Further according to the case of plaintiffs, stipulated period for vacating the premises as per the terms and conditions of such lease agreement is 9 years, which is going to be ended by 30-8-2017 and commencing from 1st September 2008, as per the clause NO.3 of
Ex.A1 lease agreement. Such fact was even admitted by defendants.
Further clause NO.18 of Ex.A1 lease agreement provides that “The
Lessee shall be entitled to terminate this agreement at any point of time during the term of this agreement by giving three months notice in writing to the Lessors, without assigning any reasons for the said termination”. In this regard, according to the contention of plaintiffs in fact no such written notice in writing was given by defendants to the plaintiffs intimating about their intention to terminate the lease agreement by giving three months advance notice to the plaintiffs.
However, plaintiffs have admitted about receipt of Ex.A2 which is undated, addressed by 2nd defendant to the 1st plaintiff by marking the copy to the 2nd plaintiff intimating to the plaintiffs that in the 3rd week of
June, 2009 itself the customer service Manager of defendant company, intimated to them that they are going to vacate the premises and
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II ASCJC:VSP 15 requested plaintiffs to consider such notice as termination of the lease agreement dated 29-9-2008. Further the contents of Ex.A2 also clearly reveal that once again it was affirmed by 2nd defendant under Ex.A2 notice, that they would like to terminate the agreement and move out of the premises and even made a mention that they paid rental for the month of June and July 2009 and requested to adjust the security deposit of Rs.4,48,410/- against the rentals for the balance months pending if any and requested them to return the remaining balance to defendant at the time of handing over the possession of premises. Even it is an admitted case of plaintiffs that such notice was received by the plaintiffs on 29-8-2009. As mentioned in Ex.A3 letter addressed by 1st plaintiff to the Senior Manager of defendant company dated 31-8-2009. Further contents of Ex.A2 made it clear that whatever the earlier intimation contended to have been given by the Customer service Manager of defendant to the plaintiffs in the month of June 2009 is just a verbal indication as deposed by DW1 in his cross-examination. Whereas clause 18 of the Ex.A1 lease agreement clearly provides that such notice, regarding terminating the lease agreement, shall be in writing and it should be given three months in advance to the plaintiffs. As such, the said oral indication referred under Ex.A2 and deposed by DW1, cannot be taken into consideration as a valid service of three months advance notice by defendant company to the plaintiffs in accordance with the terms and conditions mentioned under Ex.A1. So, in these
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II ASCJC:VSP 16 circumstances if the admitted service of Ex.A2 notice got issued by defendant company to the plaintiffs i.e. 29-8-2009 is considered as the date of service of notice regarding the termination of lease agreement, then the notice period of three months is going to be lapsed by 28-11-2009. So, the cause of action for filing the present suit in respect of any damages caused by defendant company during the subsistence of the lease period will commence on 28-11-2009 but not before that.
Whereas the present suit filed by the plaintiff on 17-9-2012 i.e. well within the period of three years limitation provided under the law of limitation for filing this sort of suit against the defendants. As such, the said plea taken by defendants in the present suit claim is barred by limitation, has no basis at all and has no legs stand in the eye of law.
Therefore, it cannot be held that the suit claim is barred by limitation.
Accordingly issue NO.I is answered in favour of plaintiffs and against the defendants.
ISSUE NO.II
18.With regard to this issue, as per the case putforth by plaintiffs, the premises i.e. the shop rooms vide 2B1 and 2B2 stand in the name of plaintiffs 1 and 2 were leased out to defendants company under the registered lease agreement marked under Ex.A1. Where under, the stipulated period of lease was mentioned as nine years and the rent was fixed at Rs.75,000/- per month. Further it is the specific case of plaintiffs
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II ASCJC:VSP 17 that defendants by issuing Ex.A2 undated notice, pre-maturely terminated the said lease agreement, however handed over the possession of leased premises to the plaintiffs under an unpleasant situation on 30-1-2010. Meanwhile they have damaged the premises as noticed in the joint survey conducted on 18-11-2009. Further, it is the contention putforth by plaintiffs that as the defendants did not turn up to attend the said repairs despite addressing number of letters by 1st plaintiff to the defendant company marked under Exs. A3 to A8 letters plaintiffs were constrained to attend the said repairs by spending huge amounts as evident from Exs. A12 to A15, A19 documents, besides the payment of arrears, maintenance charges to the Secretary of ‘Balaji
Mangalagiri Chambers Owners Association’ as evident from Ex.A10. They were also forced to pay the penal charges for consuming electricity by the defendant company during their stay in the leased premises belongs to plaintiffs as revealed under Exs. A16 and A17 and have also paid the arrears of electricity bill amount as revealed under Ex.A11. Further despite issuing a legal notice marked under Ex.A21 dated 23-3-2010, as the defendants failed to turn up to repay the amount incurred by plaintiffs for attending such repairs and damages caused by defendant company, by adjusting the security deposit of Rs.4,50,000/- paid by defendant company to the plaintiffs, the present suit filed by the plaintiffs for recovery of remaining balance of amount with subsequent interest and costs.
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19.Whereas the contention putforth by defendants in this regard is, in fact in the first week of November, 2009 itself, they have vacated the premises and shifted all their equipment lying in the leased premises and even attended repairs pointed out at the time of joint inspection, which was not reduced into writing. Despite of it, it is the plaintiff No.1 who did not allow them to take away their generator placed in the basement of the said apartment and did not pay even the security deposit amount, after adjusting the maintenance charges due by the defendant company for a period of two months and the arrears of rents for a period of four months as they stopped payment of rent subsequent to July, 2009. Further it is in order to avoid refund of such security deposit amount, by laying a false claim, plaintiffs filed the above suit by creating and fabricating all such documentary evidence let in in this case. As such, they are not liable to pay any such damages to the plaintiffs. Because, whatever the calculation made by plaintiffs for arriving the suit claim is incorrect, false and untenable and not in accordance with the terms and conditions of the lease agreement entered between plaintiffs and defendant NO.2 under the original of
Ex.A1.
20.In the light of this sort of contentions putforth by either side, when the evidence let in by both parties is carefully gone into, to prove and establish the case of plaintiffs, apart from got examining the 1st plaintiff
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II ASCJC:VSP 19 as PW1 reiterating the same facts as mentioned in the plaint, he got marked as many as 28 documents vide Exs. A1 to A28. As stated supra
Ex.A1 is the certified copy of lease agreement dated 29-9-2008 basing on which plaintiffs filed the present suit claiming recovery of amount from the defendant company towards the amount incurred by plaintiffs for attending the repairs and damages caused by defendants company to the leased premises. Further PW1 in his cross-examination gave a clear statement that in fact the suit claim was based on the lease deed terms marked under Ex.A1 and also admitted that in fact the defendants have stayed in their premises for one year only, without intimating to him, they have vacated the premises by issuing Ex.A2 undated letter, which was received by him in the month of August 2009. However at another point of time in the same cross-examination of PW1, he deposed that in fact even prior to execution of Ex.A1 i.e. for the last 5 to 6 years prior to Ex.A1, defendants had been stayed in the same premises continuously. Admittedly such fact was not mentioned either in the recitals of Ex.A1 or anywhere in the letter correspondence made by 1st plaintiff with the defendant company marked under Exs. A3 to A8 and subsequent to it or in the plaint or his chief affidavit. So, whatever the arrears of amount contended to have fell in due by the defendants prior to the lease agreement dated 29-9-2008 cannot be claimed by plaintiffs in this suit, by virtue of such categorical admission made by plaintiffs that in fact the present suit claim made by them basing on the lease
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II ASCJC:VSP 20 deed terms and that in the plaint PW1 did not aver about possession of defendants in the leased premises prior to Ex.A1. So, any amount of evidence let in by plaintiffs without therebeing any basis in the plaint is of no avail and cannot be taken into consideration in this case.
21.At this juncture it is pertinent to mention that among many heads under which the plaintiffs claiming amounts from defendants, one such head is during the stay of defendant company in the leased premises, it was noticed by APEPDCL on its surprise inspection of the premises on 22-5-2008, that through the said service connection number issued as against the contracted load of 5000 watts, consumption load as per the inspection is 27100 watts. There is excess consumption load over the contracted load of 22100 watts. Thereby the concerned authorities of
APEPDCL demanded for payment of development charges and security deposit of Rs. 70,400/- within the 30 days from the date of issuing notice under Ex.A17 dated 25-8-2009. Same was intimated to 1st plaintiff by
M/s Navya Nirman Company the sister concern of Balaji Mangalagiri
Chambers i.e. builder of plaintiffs under Ex.A16 letter dated 15-3-2010.
As a result of which, the subsequent tenant of plaintiffs i.e. Coastal
Enterprises Pvt.Ltd. adjusted the advance amount to be payable to plaintiffs to a tune of Rs.40,000/-, as they made the said payment to the
APEPDCL on behalf of 1st plaintiff as evident from A13. Hence claimed the said amount at Rs.44,000/- towards penal charges for excess
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II ASCJC:VSP 21 consumption of electricity by defendant company as mentioned in
Ex.A23 letter dated 23-3-2010 addressed to the Senior Manager of defendant company. But, as admitted by PW1 during his cross- examination, by the date of issuing notice by APEPDCL under Ex.A17
dated 25-8-2009, such agreement under Ex.A1 was not entered between
plaintiffs and 2nd defendant as evident from Ex.A1. Whereas, it is the clear case of plaintiffs that they are making a claim of recovery of amount from defendant company as per the terms and conditions stipulated under Ex.A1. Further it was even admitted by PW1 that after execution of Ex.A1, in fact defendant company stayed for one year only in their premises. Further more, Ex.A17 notice disclosed to have issued to Navya Nirmal Company but not either to the plaintiffs or to its tenant i.e. defendant company. There is no mention even under Ex.A17 that such a demand notice was issued by the concerned authorities in respect of premises pertaining 2B1 and 2B2 of plaintiffs. It is under
Ex.A16 letter dated 15-3-2010 which was addressed by the said ‘Navya
Nirman Company’, they have mentioned as if such an inspection was made in respect of premises pertaining to 2B1 and 2B2 of plaintiffs.
Further as per the evidence given by PW2, the Manager of Balaji
Mangalgiri Chambers owners Welfare Association, initially the sister concern company of Balaji Mangalagiri Chambers, took the work of construction and after completion of construction of the entire apartment, it was handed over to ‘Balaji Mangalagiri Chambers’. Further
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II ASCJC:VSP 22 it is a general practice that at the time of handing over the premises to the respective owners of the flats, by clearing off such dues of the builder, new service connection need to be taken in the name of respective flat owners. But it was stated by PW1 in his cross- examination that still the service connection number pertaining to leased premises stand in the name of ‘Navya Nirman Company’, which is no way concern with the said apartment complex by now. For that matter by the date of obtaining sale deeds by plaintiffs in respect of such lease premised in the year 2000. Ex.A11 electricity bills with corresponding receipts for the periods of 22-11-2009 to 21-12-2009 and 21-12-2009 to 21-1-2010 were issued in the name of ‘Navya Nirman
Company’, but not in the name of plaintiffs. Absolutely there is no mention that such electricity bills were pertaining to the premises vide 2B1 and 2B2 belongs to plaintiffs 1 and 2 respectively. So it is doubtful whether such an excessive load of electricity consumption was made by defendant company in respect of leased premises or by the builder for the service connection number in respect of which Ex.A11 electricity bills were issued. If at all any such amount is due by plaintiffs in respect of their premises vide 2B1 and 2B2, certainly such a due amount would have reflected even under Ex.A11 electricity bills. But Ex.A11 electricity bills and corresponding bill payment receipts reveal the demand of
Rs.5425/- for the electricity consumption covering period from 22-11-2009 to 21-12-2009 and a payment for Rs.3067 from the period
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II ASCJC:VSP 23 21-12-2009 to 21-1-2010, total of which comes to a tune of Rs.8492/-.
So, in these circumstances, simply because a letter was addressed by the subsequent tenant of plaintiffs i.e. ‘Coastal Enterprises private limited’ dated 18-1-2010 marked under Ex.A13 revealing that they paid amount of Rs.40,000/- to APEPDCL and deducted the said amount/adjusted towards rent amount payable by them to the plaintiffs, it cannot be held that such amount is due by defendant to plaintiffs.
Further to prove about any such payment by Coastal Enterprises Private
Limited as revealed under Ex.A13 and that such payment was made only in respect of premises vide 2B1 and 2B2, admittedly no concerned person from the Coastal Enterprises private Limited was examined by the plaintiffs. So, viewing from any angle, plaintiffs are not entitled to claim the said amount of Rs.44,000/- shown under Ex.A23 towards penal charges for excess consumption of electricity by defendant company, that too for a period, pertaining to much prior to commencement of lease covered by Ex.A1.
22.Even in respect of electrical charges up to 31-12-2009 claimed to a tune of Rs.7349/- under Ex.A23, admittedly the said amount is being claimed by plaintiffs by placing reliance on the original electricity bills marked under Ex.A11. As stated supra, such electricity bill was issued in the name of ‘Navya Nirman company’ but not in the name of defendants company. Further there is no mention that the said electricity payment
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II ASCJC:VSP 24 pertaining to 2B1 and 2B2 i.e. the lease premises let out to defendant company. More over the total amount disclosed to have paid under
Ex.A11 is Rs.8,492/-. Whereas in Ex.A23 the said amount is being claimed by 1st plaintiff to a tune of Rs.7439/- only. There is no proper explanation or clarification regarding such variation either in the evidence of PW1 or at the time of advancing argument by the learned counsel for plaintiffs. Further it is an admitted case of both parties that even by counting the three months advance notice from the date of receipt of Ex.A2 legal notice from D2 company i.e 29-8-2009, the three months period is going to lapse by 29-11-2009. Whereas the terms and conditions stipulated under Ex.A11 clearly reveal that meter reading will be taken at the time of occupation of premises by defendants company.
No such meter reading contended to have noted down by plaintiffs at the time of letting out the premises to defendant company under Ex.A1.
Further there is no such specific clause mentioned in Ex.A1, which entitles the plaintiffs to claim for recovery of electricity consumption bill from the tenant, even after vacating the premises, just on the ground that they did not hand over the physical possession of leased premises properly, as alleged by plaintiffs. Further PW1 made a categorical statement during his cross-examination that it is in the month of
November 2009, defendant has handed over the possession of leased premises to him without attending the repairs. So, it is clear that even as per the admission made by PW1, subsequent to November 2009,
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II ASCJC:VSP 25 defendants were not in occupation of leased premises. If that be the case, how the plaintiffs are entitled to claim for recovery of electricity consumption charges covering the period from 22-11-2009 to 21-12-2009 and 21-12-2009 to 21-1-2010 totaling to a tune of Rs.8492/- and to a tune of Rs.7439/- as claimed under Exs.A11 and A23 was also not properly explained by the plaintiffs. So, in these circumstances without any hesitation this Court is of the considered view that even the said amount is not liable to be payable by defendants company to the plaintiffs, towards arrears of electrical charges.
23.Further plaintiffs are claiming arrears of maintenance charges for a period of five months to a tune of Rs.15,000/- under Ex.A23. Which means as per the case putforth by plaintiffs the monthly maintenance charges to be payable in respect of leased premises is Rs.3,000/-.
Whereas Ex.A9 letter dated 12-1-2010 disclosed to have addressed by ‘Balaji Mangalagiri Chambers Owners Welfare Association’ to 1st plaintiff, reveal that while congratulating the plaintiffs for finding out the new tenant for their commercial space within a short time and for getting good rent because of negotiating skills of 1st plaintiff, thereby enhancing the value of their complex, they demanded for arrears of maintenance charges to a tune of Rs.12,000/- as on 01-1-2010.
Further Ex.A10 letter dated 21-1-2010 disclosed to have addressed by 1st plaintiff on behalf of plaintiffs 1 and 2 to the Secretary of Balaji
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II ASCJC:VSP 26
Mangalagiri Chambers Owners Welfare Association reveal that according to him, defendant company fell in due of maintenance charges for a period of four months only, which comes to a tune of Rs.12,000/-. In that regard, while assuring the association to pay the maintenance by himself on behalf of his tenant, he asked the association members for not to deliver the generator and several equipment belongs to defendants company, which is lying in the said building premises which are in the custody and control of association. Whereas the terms and conditions stipulated under Ex.A1 at clause NO.21 made it clear that on termination of lease either by efflux of time or on earlier termination.
the LESSEE shall deliver possession to the LESSORS in the same condition in which it was let out, subject to normal wear and tear. The LESSORS shall allow the LESSEE unhindered access to remove and take away all its equipment, furniture and fixtures.
24.But contra to such clause mentioned in Ex.A1, plaintiffs made a request and suggested the association for withholding the generator of defendant company till payment of arrears of maintenance charges by the defendant company, which is against terms and conditions stipulated under Ex.A1. Further having made a mention in
Ex.A10 that defendant company fell in due of maintenance charges for a
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II ASCJC:VSP 27 period of four months, how the plaintiffs are entitled to claim arrears of rent for a period of five months deviating from the stand taken in
Ex.A10 and demand made by concerned association under Ex.A9 was unexplained by the plaintiffs. Whereas the certified copy of receipts got marked by PW2 under Ex.A30, reveal that up to 14-9-2009 defendant company regularly paid the maintenance charges apart from rent for placing the generator in the basement of the said complex. According to the admitted case of both parties the mandatory period of three months after issuing Ex.A2 termination notice by defendant company is going to lapse by 22-11-2009. Whereas receipts marked under Ex.A30 is reveal the payment of maintenance charges up to September 2009. In such circumstances, defendant company fell in due of two months maintenance charges only to the association which comes to Rs.6000/- but not Rs.15,000/- as claimed by plaintiffs under Ex.A23. Whereas terms and conditions stipulated under Ex.A1 clearly reveal that the lessee agreed to pay maintenance charges to the association as fixed by them apart from rent. When it is an admitted fact by PW1 that the defendant company has vacated the premises in the first week of
November 2009 itself, how they are entitled to claim arrears of maintenance charges up to January 2010, for which period they are not in actual occupation of leased premises was also unexplained by the plaintiffs. More over such an entitlement was not provided in the terms and conditions stipulated under Ex.A1. Therefore, this Court is of the
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II ASCJC:VSP 28 considered view that plaintiffs are entitled for recovery of arrears of maintenance charges from defendant company to a tune of Rs.6,000/- but not Rs.15,000/- as claimed under Ex.A23.
25.With regard to payment of arrears of rental amount by defendant company, as per the terms and conditions of Ex.A1 the monthly rent payable by defendant company in respect of leased premises is
Rs.75,000/-. It is the specific contention putforth by defendant that by then they paid the rents regularly till July, 2009. Such fact was even admitted by 1st plaintiff while addressing a letter dated 31-10-2009 marked under Ex.A4. Whereas the notice period of three months is going to be lapsed by 22-10-2010. In such circumstances defendant company need to pay the arrears of monthly rents to the plaintiff for a period of four months i.e. for the months of August to November which comes to a tune of Rs.3,00,000/- but not Rs.4,50,000/- i.e. for a period of six months as claimed by plaintiffs. Further under Ex.A4, 1st plaintiff made a mention that they are going to adjust the arrears of rent commencing from the period of August, 2009 till the date of vacating the premises, as against the security deposit of Rs.4,48,410/- lying with them. A categorical statement made by PW1 in his cross-examination that in the first week of November, 2009 defendant vacated the premises. Just because of the reason of non settlement of amounts being claimed by plaintiffs to a tune of Rs.2,20,475/- and as defendant company did not
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II ASCJC:VSP 29 turn up for the letter correspondence made by 1st plaintiff under Exs. A3 to A8, which forced to plaintiff to take possession of the plaint schedule premises in the presence of police personnel by addressing a letter
dated 06-1-2010 as evident from Ex.A8, plaintiffs will not entitle to claim
arrears of rents up to January, 2010, though they have knowledge that defendants has vacated premises in the first week of November 2009 itself. So, whatever the arrears of rent claimed under Ex.A21, A23, to a tune of Rs.4,50,000/- for a period of six months is untenable and not entitled by the plaintiffs, as it was not provided so, under Ex.A1.
26.With regard to amounts claimed by plaintiffs towards attending repairs and damages caused by defendant during their stay in the leased premises to a tune of Rs.2,20,465/- as described under Ex.A23, according to the case putforth by plaintiffs, in fact defendant was in occupation of leased premises for a period of one year only. However during the course of trial, by virtue of statements made by PW1 coupled with documents got marked by PW1, it goes to show that eve prior to entering into lease agreement defendant company was in occupation of such leased premises. However PW1 made a statement in his cross- examination that in fact he is claiming the suit claim basing on Ex.A1 deed only. In such circumstances, without establishing the actual condition in which lease premises were let out to defendant company on the date of executing Ex.A1 and without establishing that any such
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II ASCJC:VSP 30 damages were actually caused by defendants to such premises during the lease period covered by Ex.A1, plaintiffs are not entitled for all such repairs attended by plaintiffs subsequent to vacating the premises by the defendant company.
27.Further plaintiffs contending that a joint inspection was made in the presence of Civil Engineer and the officials representing the defendant company as well as 1st plaintiff on 18-11-2009 at 11 a.m.
Admittedly no such joint inspection report was filed into this Court by the plaintiffs to substantiate their claim regarding the damages caused by defendant company. It is for the first time in Ex.A5 letter dated 20-11-2009, 1st plaintiff made a mention about such joint inspection
dated 18-11-2009. Where under, he categorically mentioned that the
estimated value given by Civil Engineer towards repair to the flooring, removal and refixing charges for the damaged tiles and removal of partition walls erected by the defendant company and repairs to internal walls including dismantling charges and painting charges as well as repairs to the roof, beams, white washing painting including the cost of paints and labour to a tune of Rs.1,70,000/-. But PW1 admitted in his cross-examination that in fact he got removed entire tiles but not the damages tiles alone and contended to have incurred an expenditure of
Rs.1,08,820/- towards purchase of tiles for laying the entire flooring afresh. Further, defendants contended that they are the first tenants of
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II ASCJC:VSP 31 premises and it is they who incurred the entire expenditure for laying the tiles as per their convenience for fixtures pertaining to their company in the leased premises. No doubt the photographs got marked by PW1 under Ex.A20 reveal that drilling was made into the said flooring at some points which caused damage to some of the tiles. At the same time, such photographs marked under Ex.A20 also reveal the removal of entire tiles of the floor as admitted by PW1 during his cross-examination.
When the Civil Engineer gave estimation for removal of damages tiles in accordance with joint inspection done on 18-11-2009, as per the letter addressed by 1st plaintiff to the Senior Manager of defendant company under Ex.A5, how the plaintiffs are entitled for removal of tiles pertaining to entire floor and claim the cost of such entire tiles from the defendant is also unexplained by the plaintiffs. Even the labour charges for attending the work of fixing the tiles pertaining to entire floor was claimed @ Rs.42,175/- by the plaintiffs. If at all the damage tiles were only removed and being attended by the plaintiffs, such labour charges would have not exceeded Rs.21,000/-. Further an amount of Rs.13,990/- claimed by plaintiffs towards attending repairs and painting of rolling shutters. Admittedly no such damage was noticed in the inspection report as per the contents of Ex.A5 letter addressed by 1st plaintiff to the defendant. More over the terms and conditions stipulated under Ex.A1 provides that all such painting of external areas to be born by i.e. owner of the building only. Even the minor structural repairs to be attended by
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II ASCJC:VSP 32 the owner except some major structural repairs caused due to the acts done by the Lessee. But here in this case admittedly no such evidence was produced before the Court that it is the defendants who caused damages to the major structures like beams and columns and roof of the premises as claimed by the plaintiffs. Even such damages were not found place under Ex.A5 correspondence made by 1st plaintiff with the defendants. At the same time Ex.A1 also provides that the normal where entire will be there while vacating the premises and such charges shall not be recovered from the Lessee. More over, it is the specific contention putforth by defendants that they have attended all such minor repairs pointed out during the time of said joint inspection, which is not at all a joint inspection in strict sense. But, without considering the same and giving credit of such amount incurred by defendant for attending minor and major repairs, again plaintiffs claimed entire expenditure meted out by them, while letting out the premises to a subsequent tenant to attract him. For which, defendant is not liable to pay the said amount.
28.To substantiate their contention, learned counsel for defendants drawn the attention of the Court on the letter correspondence made by 1st plaintiff with the defendant company under Exs. A6 and A7 dated 18- 12-2009 and 25-12-2009 where under it was contended by 1st plaintiff that major repair works are not completed and some work is yet to be
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II ASCJC:VSP 33 completed by defendant and fixed the dead line for completion of such repair works as 31-12-2009. Further in Ex.A7 letter correspondence it was alleged that the workers of defendant are irregular in attending repair works. Which means, by the date of addressing Exs. A6 and A7 letters defendants have attended some repair works. But, no such mention was made either in Ex.A21 notice or in Ex.A23 showing the description of such repair works attended by the defendants and no such credit was given to such repair works attended by the defendant company. So, it cannot be held that whatever the amount claimed by defendants towards attending the repairs is true and correct.
29.Further the bill payment receipt marked under Ex.A12 reveal that such a bill was obtained on 10-2-2010. Admittedly by the month of
January 2010 and even prior to that plaintiffs have let out the premises to “Coastal Enterprises Private Limited” as evident from Ex.A13. So, whatever the amount of Rs.13,990/- claimed by plaintiffs by placing a reliance on Ex.A12 is untenable. Because, no such provision was made under Ex.A1 to bear the expenses of painting charges by the Lessee.
Even no such repair work pertaining to roling shutters was pointed out under Ex.A5. So, I hold that plaintiffs are not entitled for the said amount of Rs.13,990/- claimed under Ex.A23 and A21.
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II ASCJC:VSP 34
30.Further plaintiff has claimed Rs.11,480/- towards attending repair of broken glass by replacing the same. To lay such a claim, plaintiffs have relied on Ex.A15 receipt issued by Kanakamahalakshmi glass works
dated 10-3-2010. It shows purchase of 12 mm glass for an amount of
Rs.11,450/-. But Ex.A5 letter correspondence made by 1st plaintiff is very much silent about any such damage caused to the glass fixed to the leased premises. At the same time it is the contention of defendants that to attract their customers, it is at their expenses and on the request made by 1st plaintiff, they fixed the said glass door which enhanced the rental value of leased premises. Further, by virtue of terms and conditions stipulated under Ex.A1, they are very much entitled to remove the same without causing damage to the leased premises. So, under any circumstances plaintiffs are not entitled for replacing charges pertaining to broken glass if any, which was not pointed out under Ex.A5 and which was not provided as per the terms and conditions stipulated under Ex.A1. So, I hold that even the said amount of Rs.11,480/- claimed under Ex.A21, A23 is not entitled by plaintiffs to be recovered from defendants company.
31.Regarding purchase of tiles of 110 boxes, plaintiffs marked Ex.A14 disclosing the cost to a tune of Rs.1,08,020/-. To substantiate their claim of miscellaneous charges for payment of such floor tiles to a tune of
Rs.42,175/- they got marked Ex.A19. But as stated supra, when it is not
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II ASCJC:VSP 35 the case of plaintiffs that entire tiles were completely damaged and when the estimated cost of damaged tiles is to a tune of Rs.90,000/- only as per Ex.A5, certainly plaintiffs are not entitled to claim the total amount of Rs.1,08,820/- and Rs.42,175/-. At best they are entitled to claim half of such amount which comes to Rs.75,420/- towards replacing the damaged tiles including miscellaneous charges but not otherwise.
32.So, in these circumstances, it is clear that the security deposit of
Rs.4,50,000/- is still lying with plaintiffs by the date of vacating the premises by the defendant company as admitted under Ex.A21. From out of the security deposit amount, the plaintiffs can as well adjust the amount of Rs.3,00,000/- towards arrears of rents for a period of four months and Rs.6000/- towards arrears of maintenance charges for a period of two months and Rs.75,410/- towards attending the repairs pertaining for replacement of damaged floor tiles along with its miscellaneous charges total of which comes to a tune of Rs.3,81,410/-. If that be the case, it is the plaintiffs who need to pay the balance of security deposit amount to the defendant as contended in their written statement. However as the defendants did not lay any counter claim by paying separate Court fee and as the suit claim made by plaintiffs is disclosed to be incorrect, untenable and not entitled by the plaintiffs beyond Rs.3,81,410/-, I hold that plaintiffs are not entitled for recovery of Rs.3,87,674/- towards balance amount due by the plaintiffs to a tune
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II ASCJC:VSP 36 of Rs.2,42,904/- along with subsequent interest @ 24% p.a. as claimed in this suit. Accordingly this issue is answered negative against plaintiffs and answered in favour of defendants.
33.In the result, suit is dismissed and in the circumstances, no order as to costs.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in open Court, this the
27th day of May, 2020.
II Addl., Senior Civil Judge, Visakhapatnam.
Appendix of evidence No. of witnesses examined for
Plaintiffs: P.W.1: Laveti Satya Rao P.W.2: P.Malleswara Acharya
Defendants: D.W.1: Ramesh Kumar P.N. No. of exhibits marked for Plaintiffs: Ex.A1 is the certified Extract Registered lease agreement dated 29-9-2008 Ex.A2 is the letter from the 2nd defendant Ex.A3 is the office copy of registered letter from the plaintiffs to the defendants along with original postal acknowledgments dated 31-8-2009 ( 2 in number) Ex.A4 is the office copy of registered letter from the plaintiffs to the 2nd defendant along with original postal receipts and acknowledgements
dated 31-10-2009
Ex.A5 is the office copy of registered letter from the plaintiffs to the 2nd defendant along with original postal acknowledgments dated 20-11-2009 Ex.A6 is the office copy of letter from the plaintiffs to the 2nd defendant along with original courier receipts and receipts dated 18-12-2009 Ex.A7 is the office copy of registered letter from the plaintiffs to the 2nd defendant along with original postal receipt dated 25-12-2009 Ex.A8 is the office copy of complaint submitted by the 1st plaintiff to the SHO, L & O, III Town P.S. dated 06-1-2010
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II ASCJC:VSP 37
Ex.A9 is the letter from Balaji Mangalagiri Chamber’s owners welfare Association to the 1st plaintiff dated 12-1-2010 Ex.A10 is the office copy of letter from the plaintiff to Balaji Mangalagiri Chamber’s owners Welfare Association dated 20-1-2010 Ex.A11 is the electricity bills and receipts (2 in number) Ex.A12 is the Bill issued dated 10-2-2010 by Balaji painting contract works. Ex.A13 is the letter from Coastal Enterprises Private Limited to the plaintiffs
dated 05-3-2010
Ex.A14 is the cash bill issued by Pavan Mithra Agencies dated 05-3-2010 Ex.A15 is the Bill issued by Sri Kanakamahalakshmi Glass works dated 10-3-2010 Ex.A16 is the letter from M.S.Navya Nirman Company Private Limited to the plaintiffs dated 15-3-2010 Ex.A17 is the notice issued by APEPDCL along with photocopies of two cheques and receipts dated 25-8-2009 Ex.A18 is the office copy of registered letter from the plaintiffs to the 2nd defendant along with original postal receipts dated 16-3-2010 Ex.A19 is the bills issued by the Pavanmithra Agencies dated 17-3-2010 Ex.A20 is the 15 positive photographs of the leased premises Ex.A21 is the office copy registered letter from the plaintiffs to the 2nd defendant along with two original postal receipts and one acknowledgment dated 23-3-2010 Ex.A22 is the returned postal cover Ex.A23 is the office copy of registered letter from the plaintiffs to the 2nd defendant along with original postal receipt and acknowledgment dated 23-3-2010 Ex.A24 is the office copy of registered laywer notice issued to the defendant along with original postal receipt dated 25-5-2010 Ex.A25 is the office copy of letter addressed to the post master duly acknowledged dated 22-6-2010 Ex.A26 is the letter from the post master to the counsel for the plaintiffs dated 23-6-2010 Ex.A27 is the letter from the post master to the counsel for the plaintiffs dated 24-6-2010 Ex.A28 is the office copy of registered letter from the plaintiffs to the 2nd defendant along with original postal acknowledgment dated 08-2-2011 Ex.A29 is the authorization letter dated 29-1-2020 given in favour of PW2 Ex.A30 is the bunch of attested receipt issued on behalf of their association acknowledging receipt of maintenance charges as deposed by PW2.
Defendants: Nil
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