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Judgment
Venuthurumalli Gopala Krishna Rao, J
This appeal is filed against the judgment and decree, dated 06-3-2007, in O.S.No.62 of 2005, passed by the learned Additional Senior Civil Judge (Fast Track Court), Gudivada. The appellant is the defendant and the respondent is the plaintiff in the said suit.
For the sake of convenience, the parties herein will be referred to as arrayed before the trial Court.
The plaintiff in O.S.No.62 of 2005 before the trial Court filed the plaint with a prayer for recovery of Rs.4,57,532/- from the defendant with subsequent interest at 12% per annum from the date of suit till realization and for costs.
The brief averments in the plaint filed by the plaintiff are as follows: The plaintiff is Andhra Pradesh State Road Transport Corporation (APSRTC) having its branches, depots and bus stations all over the State of Andhra Pradesh including the bus station at Pamarru. The defendant has duly executed a deed of licence for running 3 stalls in favour of the plaintiff and the defendant has thus been allotted with 3 different stalls at different places for running the business on tenders duly allotting the respective places at Pamarru Bus Station. In violation of the terms and conditions of the tenders and the deeds of licence, the defendant had unauthorisedly shifted the above 3 businesses into the vacant places where pan, soda and cool drink stalls were earlier allotted to other licencees and continued without any manner of right the businesses without obtaining prior permission from the officers of the plaintiff/Corporation. The defendant violated the terms and conditions of the agreement by encroaching upon the spaces already allotted to other licencees. The defendant caused loss to a tune of Rs.2,99,184/- for doing unauthorized business by running the businesses at the places of pan and soda stalls which were allotted to others and the defendant also committed a loss of Rs.32,000/- towards non-payment of licence fee for fancy and mineral water stalls for 16 months at the rate of Rs.2,000/- per month and the defendant also caused loss to an amount of Rs.63,276/- towards loss incurred by the Corporation to allot the space to K. Venkateswara Rao, who is a successful bidder for pan and soda stall and cool drink stall, because of the defendant filed a writ petition before the High Court and in view of status quo orders, the defendant continued in the business and did not vacate the premises and after dismissal of the said writ petition, the defendant vacated the premises and that the same was handed over to K. Venkateswara Rao, licencee of another shop. In total, the plaintiff sustained a loss of Rs.3,94,460/-. The plaintiff also issued a legal notice to the defendant on 12-01-2004. Despite receipt of notice, the defendant failed to repay the same and that the plaintiff is constrained to file the suit.
The defendant filed a written statement. The brief averments in the written statement filed by the defendant are as follows:
The defendant obtained a bakery stall in APSRTC Bus Station Complex, Pamarru, on 05-8-2002, as per the agreement schedule and the defendant was allotted a fancy stall on the same day through a tender and the said fancy shop of stall No.7 is running presently as per the plan filed by the defendant. The APSRTC authorities allotted the 3rd stall to the defendant in the said complex as per the tender agreement and schedule and there is a telephone booth in the 3rd stall and soda shop in the 4th stall, are running respectively. The APSRTC authorities directed the defendant to run the bakery shop in the 7th stall of fancy shop which was allotted already to the wife of defendant along with the fancy shop until vacating the 3rd and 4th stalls and to pay the lease amount. The defendant further pleaded that the 5th stall was vacated by Smt. K. Sudha Rani, who runs a soda shop in the said stall by applying an application to the APSRTC authorities and the said authorities refunded her security deposit and directed the defendant to run his fancy shop in the 5th stall by shifting his bakery shop from the 7th stall. The defendant shifted his bakery shop from the 7th stall into the 5th stall and paying rents every month without any default and the APSRTC authorities accepted that the defendant is a tenant of the 5th stall by receiving rents. The defendant further pleaded that he filed a tender for fruits and fruit juice shop in the said complex, the authorities allotted shop No.2 as per the agreement and schedule dated 11-12-2002, but already there is ANL Parcel Service running in shop No.2 and they are having written orders of APSRTC authorities dated 11-4-2002, in which shop No.2 was allotted to ANL Parcel Service. The APSRTC authorities directed the defendant to run his business in the 6th shop which was vacated then to save wrongful orders as per the agreement and schedule. The defendant further pleaded that the suit is not maintainable as the defendant is running his business in all the shops after obtaining permission from the APSRTC authorities.
Based on the above pleadings, the trial Court framed the following issues for trial:
(1) Whether the plaintiff is entitled for suit claim as prayed for ? and
(2) To what relief ?
During the course of trial, on behalf of the plaintiff, P.W.1 is examined and Exs.A-1 to A-11 are marked. On behalf of the defendant, D.W.1 is examined and Exs.B-1 to B-14 are marked.
After completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit with costs for Rs.4,57,532/- against the defendant with subsequent interest at 12% per annum from the date of suit till the date of realisation on Rs.3,94,460/-, against which the present appeal is filed by the defendant.
Heard Sri Palle Nageswara Rao, learned counsel for the appellant/ defendant and Sri Solmon Raju Manchala, learned standing counsel for the respondent/APSRTC.
Now, the points for determination are:
(1) Whether the trial Court is justified in decreeing the suit ? and
(2) To what extent ?
Point No.1:- Whether the trial Court is justified in decreeing the suit ?
The case of the respondent/plaintiff is that the defendant obtained deeds of licence for running 3 stalls in APSRTC Bus Station, Pamarru, at specified places and the defendant was also allotted with 3 different stalls at different places for running his business on tenders duly allotting the respective spaces at Pamarru Bus Station and the defendant is supposed to carry the business specified in the space allotted only. The plaintiff further pleaded that in violation of the terms and conditions of the tenders and the deeds of licence, the defendant unauthorisedly shifted the above said 3 businesses into vacant shops where pan, soda and cool drink stalls that were earlier allotted to other licencees and fallen vacant subsequently and continued the business till date without obtaining prior permission either from the Divisional Controller in APSRTC Depot, Machilipatnam or from the APSRTC Depot Manager, Machilipatnam. The plaintiff further pleaded that there is a clear violation and resulted in non-allotment of stalls to other respective tenderers on finalization of subsequent tenders and thereby incurred a loss of commercial revenues to the Corporation to an extent of Rs.3.94 lakhs.
The plaintiff approached the trial Court in the year 2005 for seeking claim of Rs.4,57,532/- with interest thereon. In those days, the said amount is not a small amount and it is a huge amount. Since the plaintiff approached the trial Court for claiming a sum of Rs.4,57,532/-, the burden is on the plaintiff to prove the case of the plaintiff by producing oral and documentary evidence.
The plaintiff relied on the evidence of P.W.1. P.W.1 is the Divisional Controller in APSRTC Depot, Machilipatnam. As per his evidence, the defendant had been a licencee for 3 stalls in Pamarru Bus Station belong to the plaintiff/APSRTC in the year 2002 for a period of 3 years. He further deposed that the defendant executed deeds of licence in respect of 3 stalls under Exs.A-1 to A-3 i.e. for running bakery stall, mineral water stall, fruit and fruit juice stall. Ex.A-4 shows that the plaintiff issued a legal notice to the defendant. Ex.A-4 goes to show that the plaintiff got issued a legal notice on 12-01-2004 and the defendant received the said notice under Ex.A-5 postal acknowledgement. Ex.A-6 goes to show that the plaintiff issued another legal notice dated 31-3-2004 and the defendant received the said notice under Ex.A-7 postal acknowledgement. Ex.A-8 goes to show that the plaintiff approached the High Court and filed a writ petition vide W.P.No.15360 of 2003 and the same was dismissed by the High Court. Ex.A-9 is the plan of entire bus station complex, Pamarru. Ex.A-10 is the photo copy of the letter dated 06-01-2004. Ex.A-11 is the Photostat copy of letter dated 11-4-2002.
The material on record goes to show that the defendant entered into a contract with the plaintiff/APSRTC to run the businesses of bakery stall, mineral water stall, fruit and fruit juice stall in 3 different stalls and entered into deeds of licence under Exs.A-1 to A-3. But, in violation of the same, the defendant carried out the businesses at different places and unauthorisedly shifted his 3 stalls into vacant places where pan, soda and cool drink stalls, which were earlier allotted to other licencees. It is admitted by the defendant that his wife K. Sudha Rani vacated the pan and soda stall and the said shop was vacated on 27-6-2002 and the monthly rent is Rs.18,699/-. It is also admitted by the defendant that after vacation of the said stall, security deposit amount was refunded to the wife of the defendant. It is the case of the plaintiff that the defendant shifted his fruit and fruit juice stall at stall No.5 and raised structures which were vacated by his wife, the same was denied by the defendant in his evidence.
The case of the defendant is that the APSRTC authorities orally permitted him to run a bakery shop in the 7th stall of fancy shop which was allotted already to his wife along with fancy shop until vacating the 3rd and 4th stalls and to pay the lease amount. He further stated that with oral permission of the APSRTC, he is running fancy stall and bakery stall in the 7th stall and paying rents for two stalls. As per his evidence, the APSRTC authorities orally permitted him to run his bakery shop in the 5th stall by shifting his bakery shop from the 7th stall. In order to prove the same, no evidence is adduced by the defendant to show that the APSRTC authorities have granted permission and he shifted the business premises to a different space other than the space allotted by the APSRTC. As stated supra, no evidence was adduced by the defendant to show that he sought permission from the APSRTC authorities to shift the business to stall No.5 which was vacated by his wife. Ex.A-8 clearly goes to show that the defendant was allotted at a particular space for specified stall, but the defendant raised structures in the said open space, it is nothing but a violation of the terms and conditions in Exs.A-1 to A-3. The schedule of premises with boundaries was specifically mentioned in Exs.A-1 to A-3. By violating the terms and conditions in Exs.A-1 to A-3, the defendant cannot run his 3 businesses at the same place which causes financial loss to the plaintiff/APSRTC.
As per the case of both the parties, the wife of the defendant, by name Sudha Rani, vacated shop No.5 on 27-6-2002 and she also received refund of security deposit. Though the defendant denied that after his wife vacated the said shop, he occupied the said shop to run the business, but he admits in his evidence in cross-examination about the vacation of shop after dismissal of writ petition filed by him in the High Court. As per the plaint averments, due to illegal occupation of stall No.5 by the defendant, the plaintiff /APSRTC sustained a loss of Rs.2,99,184/- towards rent of 16 months i.e. 16 X Rs.18,699/- = Rs.2,99,184/-. As per the plaint averments, the wife of the defendant vacated the premises on 27-6-2002 and the said shop was allotted to K. Venkateswara Rao on 17-4-2003. It is the case of the plaintiff that since the defendant approached the High Court by filing a writ petition and due to the pendency of status quo order granted by the High Court, the defendant continued the business at the same place for a period of 3 months, due to that the premises was not vacated and handed over to K. Venkateswara Rao. The plaint averments go to show that the said premises was handed over to the said K. Venkateswara Rao on 17-8-2003, it means the defendant vacated the premises on 17-8-2003 after filing a writ petition before the High Court. As per the case of plaintiff, the admitted rent to be paid by K. Venkateswara Rao is Rs.15,819/- per month. Therefore, the plaintiff is entitled to recover the loss of revenue from 27-6-2002 to 17-8-2023 at the rate of Rs.15,819/- only for 13 months and 20 days [Rs.2,05,647/- (13 months) + Rs.10,546/- (20 days) = Rs.2,16,193/-] from the defendant.
The plaintiff claimed an amount of Rs.32,000/- for non-payment of licence fee by the defendant for running a fancy shop and mineral water stall. It is the case of the plaintiff that the defendant obtained permission for running fancy shop and mineral water stall and paid licence fee. Admittedly, there is no evidence to show that the defendant failed to pay the licence fee of Rs.32,000/- for running fancy shop and mineral water stall. Therefore, the plaintiff is not entitled to the said amount of Rs.32,000/-.
As stated supra, the defendant is liable to pay an amount of Rs.2,16,193/- to the plaintiff/APSRTC. It was admitted by P.W.1 i.e. the Divisional Controller in APSRTC Depot, Machilipatnam, that the security deposit amount which was deposited by the defendant was not yet refunded due to some dues from the defendant. As per the plaint averments, the defendant paid an amount of Rs.20,736/- towards security deposit of bakery stall, an amount of Rs.24,600/- towards security deposit of mineral water stall and an amount of Rs.15,000/- towards security deposit of fruit and fruit juice stall, in total Rs.60,336/-. The security deposit amount of Rs.60,336/-deposited by the defendant is lying with the plaintiff. Therefore, the said amount has to be refunded to the defendant. Therefore, the said amount has to be deducted by the plaintiff/APSRTC from out of the aforesaid amount of Rs.2,16,193/-. If security deposit of 3 stalls which was deposited by the defendant for an amount of Rs.60,336/- is deducted, the defendant has to pay Rs.1,55,857/- to the plaintiff. Therefore, the plaintiff is entitled to an amount of Rs.1,55,857/- from the defendant. The plaintiff claimed interest of 12% per annum from the defendant. Admittedly, there is no contract in between the plaintiff and the defendant with regard to the rate of interest. Therefore, the plaintiff is entitled to interest of 6% per annum on the aforesaid amount of Rs.1,55,857/- from the date of suit till the date of realization.
Point No.2:- To what extent ?
In the result, the appeal is partly allowed and the judgment and decree passed by the trial Court is modified as the plaintiff is entitled to an amount of Rs.1,55,857/- (Rupees one lakh, fifty five thousand, eight hundred and fifty seven only) along with interest at 6% per annum from the date of filing of the suit till the date of realization. Pending applications, if any, shall stand closed. Considering the circumstances of the case, I order each party to bear their own costs.