JUDGMENT : Easwaran S., J. A suit for recovery of money on account of an advance amount paid as a security deposit for a purported arrangement of lease was decreed and a counter claim dismissed. Two appeals were preferred by the defendant and both the appeals stood allowed and the decree for recovery of money was reversed and a counter claim for recovery of the use and occupation charges was granted and hence, the present appeals. 2. The appellant Bank offered to take the portion of the defendant’s property for establishment of an ATM counter on 20.07.2004. The offer was accepted and on 16.08.2004, a lease agreement was executed with a proposed rent of Rs. 5,000/- per month. Rs. 50,000/- was paid as advance. On 14.12.2004, an inspection was conducted by the Chief Engineer of the Bank who found that the area which is proposed to be leased out is not in accordance with the specification of the Bank and accordingly, Ext. A5 notice was sent proposing to withdraw from the arrangement requesting the defendant to return the advance money. The request was not accepted and hence, Ext. A6 notice was issued on 27.12.2004 which was replied on 31.12.2004 by the defendant stating that he has no other place to offer and that the Bank may choose to reconsider their decision and if the Bank desires, a larger area can be offered by the defendant. It was not accepted by the Bank. Later, after a series of communications, the Bank approached the Principal Munsiff Court – II, Kozhikode, by filing the suit wherein the keys were deposited and the surrender was effected. 2.1. The claim of the Bank is that during the period from 20.07.2004 to 10.03.2005, the rent as agreed between the parties was paid after deducting the arrears. Therefore, since they had already remitted the amount for use and occupation charges, they are entitled for refund of the amount. The defendant resisted the suit by filing a written statement and also raising a counter claim to the effect that he is entitled to appropriate an amount of Rs. 45,000/- which represents Rs. 5,000/- per month from 18.10.2004 till date i.e., 30.07.2005. The Trial Court rejected the counter claim and decreed the suit. On appeal, the decree was reversed and the counter claim was decreed and hence, the present appeals. 3. 45,000/- which represents Rs. 5,000/- per month from 18.10.2004 till date i.e., 30.07.2005. The Trial Court rejected the counter claim and decreed the suit. On appeal, the decree was reversed and the counter claim was decreed and hence, the present appeals. 3. On 18.10.2012, this Court admitted the appeals and framed the following substantial questions of law; "1) Whether the lower appellate court is legally correct in relying on the presumption available under Clause g of Sec. 114 of the Indian Evidence Act for non-suiting the appellant? 2) Whether the terms and conditions of the contract is evident from Ext. A1 to A5 and Ext. A15 and the same is sufficient to grant a decree to the plaintiff? 3) Whether the non-prosecution of the lease deed is a ground to non-suit the appellant? 4) When the evidence available in the case establishes that the respondent has failed to provide an area of 10’x8’ sq. ft. as offered him under Ext. A1 is the lower appellate court justified in granting a decree based on the counter claim?” 4. Heard Sri. Deepa Narayanan, the learned Counsel appearing for the appellant and Sri. Srinath Girish, the learned Counsel appearing for the respondent. 5. The only question to be considered is, whether the First Appellate Court was justified in decreeing the counter claim by reversing the judgment and decree of the Trial Court? Admittedly, the appellant Bank had taken the premises on lease on 16.08.2004. Though it is contended that the lease agreement was not produced, the non-production of the lease agreement is of no consequences because acceptance of Rs. 50,000/- is admitted in view of the offer and acceptance letter in Ext. A1. It is also admitted that on 14.12.2004, an inspection was conducted by the Bank and the premise was found to be lacking the requirements and, therefore, Ext. P5 notice was issued expressing their intention to vacate the premises and refund of the advance. When this was not accepted, Ext. A6 was issued which was replied through Ext. A7. 6. As a matter of fact, at no point of time, the defendant had come forward to accept the keys from the Bank which necessitated the Bank to file the suit and surrender the keys before the Court. A reading of paragraph No. 11 of the plaint shows that an amount of Rs. A7. 6. As a matter of fact, at no point of time, the defendant had come forward to accept the keys from the Bank which necessitated the Bank to file the suit and surrender the keys before the Court. A reading of paragraph No. 11 of the plaint shows that an amount of Rs. 17,581/- was credited by the Bank towards rent during the interregnum period i.e. from 20.07.2004 till 14.12.2004 when they expressed their intention to discontinue the period and terminate the lease and also the demand the security deposit. 7. The case of the defendant on the other hand is that he is entitled for damages in the use and occupation charge @ Rs. 5,000/- from the date of inception till the Bank vacated the premises. Under normal circumstances, it would have been possible for this Court to grant the relief provided the Bank had remitted the rent for the period which they occupied. Admittedly, in the present case, on 14.12.2004, the Bank had issued an letter to the defendant expressing their intention to terminate the lease. In all fairness, the defendant ought to have accepted the same and withdrawn from the transaction because the space which was offered by the defendant was not up to the requirement of the Bank. It is also beyond dispute that to Ext. A6, the defendant had replied by Ext. A7 on 31.12.2004. Therefore, as early as in December, 2004, the defendant was aware that the Bank does not intend to proceed with the purported lease arrangement between the parties. If that be so, this Court cannot lend support to the findings of the First Appellate Court in reversing the judgment and decree of the Trial Court and granting the relief to the defendant on the counter claim. 7.1. In such circumstances, this Court is of the view that the judgment of the First Appellate Court is unsustainable. Accordingly, the substantial questions of law framed by this Court as above are answered in favour of the appellant and it is held that in the light of the fact that the Bank has already remitted the rent for the period from 20.07.2004 till 14.12.2004, the claim for use and occupation charges by the defendant in the counter claim is unsustainable. Accordingly, this appeals are allowed by reversing the judgment and decree in A.S. Nos. Accordingly, this appeals are allowed by reversing the judgment and decree in A.S. Nos. 129 of 2008 and 133 of 2008 on the files of Sub Court, Kozhikode and restoring the judgment and decree in O.S. Nos. 312 of 2005 on the files of Principal Munsiff Court –II, Kozhikode. 8. In the peculiar facts of the case, though this Court has found that the judgment of the First Appellate Court is unsustainable, the appellant Bank is not entitled to a decree as prayed for. The Bank claimed recovery of Rs. 17,581/- + Rs. 50,000/- which they are not entitled because admittedly, for a period of 5 months, the Bank had occupied the premises and even going by paragraph 11 of the plaint, the said amount was paid as rent. Moreover, it was incumbent upon the Bank to have verified the specifications of the room for which they had entered into lease for the purpose of establishment of ATM counter prior to the offer being granted to them to the defendant on 20.07.2004. However, the inspection was conducted only on 14.12.2004 and, thereafter, the lack of requisite specifications noted. 8. In such circumstances, this Court is inclined to allow these appeals in part by answering the substantial questions of law in favour of the appellant. Accordingly, these appeals are allowed by reversing the judgment and decree in A.S. Nos. 129 of 2008 and 133 of 2008 on the files of Sub Court, Kozhikode. O.S. No. 312 of 2005 on the files of Principal Munsiff Court – II, Kozhikode, is decreed in part. The appellant/plaintiff is entitled to a decree for realization of Rs. 50,000/- with interest @ 6% p.a. from the date of the suit till decree and thereafter @ 9% p.a. till realization together with cost.