MR BALAJI SHANMUGANATH v. MR MOHAMMED ALI ASIF MEHKRI
RFA/23/2019 · 2026-02-16
M G S Kamal
Original Suitbody2026
DailyLaw.ai
[ 2026 DAILYLAW 9534 (KAR) · dailylaw.ai ]
DailyLaw.ai
[ 2026 DAILYLAW 9534 (KAR) · dailylaw.ai ]
Judgment text
Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2026:KHC:9412 RFA No. 23 of 2019 C/W RFA No. 1968 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR FIRST APPEAL NO. 23 OF 2019 (MON) C/W REGULAR FIRST APPEAL NO. 1968 OF 2012 (MON)
IN RFA No. 23/2019
BETWEEN:
MR. BALAJI SHANMUGANATH AGED ABOUT 36 YEARS, S/O MR.J.SHANMUGANATH, R/AT NO.9, NORRIS ROAD, CANTERBURY APARTMENTS, FLAT NO.G-2, RICHMOND TOWN, BANGALORE-560 025. …APPELLANT (BY SRI. RAJESH D M., ADVOCATE)
AND:
MR MOHAMMED ALI ASIF MEHKRI S/O MR.AHMED ALI MEHKRI R/AT NO.61/21, CHICK BAZAAR ROAD, TASKER TOWN, SHIVAJINAGAR, BANGALORE-560 051. …RESPONDENT
(BY SMT. SHWETHA SHANMUKHAPPA, ADVOCATE FOR SRI. SHANMUKHAPPA, ADVOCATE)
Digitally signed by SUMA B N Location:
HIGH COURT OF KARNATAKA
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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.09.2018 PASSED IN OS.NO.7122/2012 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL AND JUDGE, BENGALURU CITY, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.
IN RFA NO. 1968/2012
BETWEEN:
BALAJI SHANMUGANATH S/O MR J SHANMUGANATH AGED ABOUT 29 YEARS RESIDING AT NO.9, NORRIS ROAD CENTERBURY APARTMENTS FLAT NO.G-2, RICHMOND TOWN BANGALORE-560 025. ...APPELLANT (BY SRI. RAJESH D M., ADVOCATE)
AND:
MR MOHAMMED ALI ASIF MEHKRI S/O MR AHMED ALI MEHKRI AGED ABOUT 46 YEARS NO.61/21, CHICK BAZAAR ROAD TASKER TOWN SHIVAJINAGAR BANGALORE-560 051. ...RESPONDENT
(BY SMT. SHWETHA SHANMUKHAPPA.,ADVOCATE FOR SRI. SHANMUKHAPPA, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.08.2012 PASSED IN O.S.NO.3022/2009 ON THE FILE OF THE XXXI-ADDL. CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR RECOVERY OF MONEY.
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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
ORAL JUDGMENT
Appellant herein was a tenant under respondent in respect of a residential flat bearing No.G3 also known as Unit No.003 situated in the ground floor of the building 'Arambha' situated at No.23/3 Alfred Street, Richmond Town, Bangalore- 25 measuring 1875 square feet and other common area with parking space having been inducted in terms of an agreement of lease dated 26.09.2008. Admittedly the term of the lease was for a period of 11 months. The monthly rent agreed to be paid by the petitioner was Rs.34,000/-. A sum of Rs.2,04,000/- was paid towards interest free refund of security deposit. In addition petitioner was also required to pay electricity consumption charges and the maintenance charges towards the flat. 2. Case of the appellant is that after he taking delivery of the possession of the flat, it was found that there were certain defects in the property in the nature of replacement of sanitary, plumbing, electrical items which the appellant had
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identified and brought to the notice of the respondent. That respondent had promised and assured to carry out the defects identified by the appellant. 3. That despite collecting the entire rent in advance in a sum of Rs.3,74,000/- and also the security deposit of Rs.2,04,000/-, the respondent failed and neglected to perform his part of the promise in rectifying the defects pointed out by the appellant and remained defiant. Appellant was constrained to issue a notice dated 28.02.2009, terminating the tenancy effective from 31.03.2009 and called upon the respondent to refund the security deposit of Rs.2,04,000/- and remaining balance from and out of the advance rent of Rs.3,74,000/- after adjusting rent for five months i.e. for the months of November 2008 to March 2009 enabling the appellant to vacate on or before 31.03.2009. It was made clear in the said notice, should the respondent fail to refund the amount as demanded, there won't be any obligation on the part of the appellant to pay the rent on and from 01.04.2009 till respondent refunds the amount as claimed by the appellant with interest @ 18% per annum. - 5 -
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4.
In response respondent had issued a reply dated 27.03.2009 refusing to refund the advance rent as well as the interest free refund of security deposit. Now the appellant had made alternate arrangement and did not wish to continue in the possession of the premises. However since the respondent would take forcible possession of the property without returning the amount due to the appellant, he was constrained to file the suit, though he was ready and willing to hand over the possession of the suit premises simultaneously upon respondent returning the amount of Rs.4,08,000/- with interest @ 18% per annum. Hence the suit for recovery. 5. After filing of the suit as above, respondent herein also filed suit in O.S.No.7122/2012 and appellant appeared and filed written statement admitting being the tenant as claimed in respect to the suit premises in terms of the lease agreement. It is however contended that the lease was for a period of 11 months commencing from 10.10.2008 and the same had not expired and the appellant has not vacated the premises and was squatting over the same. While seeking recovery of the amount as claimed that the appellant had stayed in the
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premises for a period of 8 months being liable to pay the rent upto 31.05.2009 amounted to Rs.2,72,000/-. Remaining balance payable from and out of the advance rent was only Rs.1,02,000/-. Said amount together with the refundable cheque deposit of Rs.2,04,000/- was payable only when the tenant vacated and delivered the vacant possession of property. Till then respondent was not entitled for the relief as sought for. Hence sought for dismissal of suit. 6.
That in addition to averments extracted hereinabove, it is contended that though the respondent had expressed his intention to receive the keys, appellant did not deliver the same and it is only by virtue of the order of the High Court he delivered the keys on 29.11.2011. As such he was liable to pay the rents from October 2008 upto 29.11.2011. That is for a period of 38 months amounting to Rs.12,92,000/-. That despite the request made by the respondent in said suit in O.S.No.3022/2009 he did not give the keys. That the trial Court by its judgment and decree dated 04.08.2012 dismissed the suit in O.S.No.3022/2009 with costs. Thus the appellant has admitted the fact of he holding the keys of the flat from the
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date of his occupation till 29.11.2011 being liable to pay the amount as claimed. In addition to the amount of Rs.12,92,000/- payable towards the rent, it is further contended that the appellant was liable to pay maintenance charges to the Association and the electricity consumption charges to BESCOM which aggregated in a sum of Rs.1,26,554/-. Thus in aggregate appellant was due and liable to pay Rs.14,18,554/- after deducting the advance amount of Rs.3,74,000/- appellant was still due and liable to pay Rs.10,44,554/-. Hence both the appellant and respondent filed the above suits in O.S.No.3022/2009 and O.S.No.7122/2012 for recovery of sum of Rs.2,04,000/- and Rs.10,44,554/- respectively with interest @ 18% per annum from the date of the suit till realisation. 7. Appellant reiterating the averments made in the plaint in O.S.No.3022/2009 contended that he was left with no option but to file suit in O.S.No.3022/2009 seeking recovery of the amount due and payable by the respondent.
That he had filed a memo on 27.03.2010 seeking permission to deposit the keys of the schedule premises into the trial Court for safe custody till
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the disputes are resolved which memo was rejected by the trial Court vide order dated 24.04.2010. Appellant was thus ready to deliver the keys of the premises right from 01.04.2009, respondent was not in a position to pay the admitted amount as per the written statement filed by the appellant. If the respondent had deposited the admitted amount, he could have taken the keys having failed to do so, it was not open for respondent to claim the amount. There was inherent vastu defect in the premises. The respondent had played fraud on the appellant by not disclosing the said defect as well as not carrying out the repair as promised. 8. Being aggrieved with the rejection of the memo by the trial Court,
appellant had filed a writ petition in W.P.No.23104/2010 which was allowed by order dated 13.09.2012 directing the appellant to deliver the keys and hand over the possession of the premises to the respondent and the respondent to refund Rs.2,04,000/- to the appellant towards the security deposit. As he disputed liability, trial was directed to be concluded within six months. As such, he contended the suit filed by the respondent for recovery of the amount of
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Rs.10,44,554/- was not maintainable. Hence sought for dismissal of the suit. 9. Trial Court framed following issues in O.S.No.3022/2009:
"1. Whether the plaintiff proves that defendant has agreed to complete the pending works as stated in plaint para 3(a) to (g)? 2. Whether the plaintiff is entitled for the interest 18% p.a. as prayed? 3.
Whether the plaintiff is entitled for the relief as prayed for?" Following issues in O.S.No.7122/2012:
"1. Whether the plaintiff proves that defendant is due of Rs.10,44,554/- to him towards rent from 10.10.2008 to 29.11.2011 and maintenance charges? 2. Whether the cause of action arose to file the suit? 3. Whether plaintiff is entitled for the decree as prayed for? 4. What order or decree?"
10. By the impugned judgment and decree dated 29.09.2018 passed in O.S.No.7122/2012, trial Court partly
decreed the suit filed by the respondent directing the appellant herein to pay Rs.10,24,856/- along with interest @ 6% p.a.
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being rent towards 38 months from 10.10.2008 to 29.11.2011 and maintenance charges of Rs.1,06,856/-. Being aggrieved by the same appellant is in appeal in RFA No.23/2019.
11. The suit in O.S.No.3022/2009 was dismissed by
Judgment and decree dated 04.08.2012. Being aggrieved the appellant is before this Court in RFA No.1968/2012. 12. Learned counsel appearing for the appellant, taking this Court through the records, more particularly to the notice dated 28.02.2009 produced at Exhibit-P3, points out that the possession of the flat was delivered by the respondent on 01.11.2008, soon after identifying the defects, the appellant had brought to the notice of the respondent and had expressed his desire to vacate the premises subject to respondent refunding the entire security deposit Rs.2,04,000/- and a sum of Rs.2,04,000/- from and out of Rs.3,74,000/- as advance rent on or before 31.03.2009. He submits that since there was no compliance with regard to the said demand, appellant was constrained to file the suit in O.S.No.3022/2009. He draws attention of the Court to the reply at Ex.P5 issued by the respondent to the notice issued by the appellant and submits
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that the respondent had declined to take possession of the premises insisting that appellant was not entitled to terminate the lease and would be liable to pay the rental for the entire term of 11 months. Though appellant had admittedly occupied the premises only for a period of five months, he submitted this unreasonable demand in the absence of any provisions in the lease agreement, had constrained the appellant to file the suit. That in the meanwhile appellant to the knowledge of the respondent had vacated the premises and was staying separately. The bonafide attempt of the appellant to return the keys is also evidenced by the fact that apart from offering the possession through the notice, he had also filed a memo before the trial Court which was rejected and the appellant pursued the matter by filing writ petition No.23104/2010. It is only thereafter appellant had an opportunity to hand over the key. Therefore, he submits that no blameworthy trait can be attributed to the appellant. That the respondent cannot derive benefit of his own wrong which both the trial Courts have failed to appreciate warranting interference at the hands of this Court. - 12 -
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13.
Per contra, learned counsel appearing for the respondent justifying the impugned judgment and decree passed by the trial Court submit admittedly lease agreement was for a period of 11 months and same did not provide any scope for termination at the instance of the appellant which was brought to the notice of the appellant soon after receipt of his notice dated 28.02.2009 by reply dated 27.03.2009 as per Exhibit-P5. That the respondent has never refused to take the possession of the premises. However subject to condition of deducting the rents for a period of 11 months and maintenance and electric charges if any. She submits that since conditions being reasonable cannot be found to be excessive. Appellant taking undue advantage of his own wrong in not delivering the possession, has caused financial loss to the respondent who was otherwise entitled for the monthly rent in terms of the agreement. She submits trial court has committed no error in appreciating these factual aspects of the matter and dismissed the suit of appellant and partly decreed the suit of respondent by impugned judgment and decrees warranting no interference. 14. Heard and perused the records. - 13 -
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15. Points that arise for consideration are:
"(i) Whether appellant herein is entitled for recovery of Rs.2,44,000/- towards interest free security deposit as well as another Rs.2,04,000/- being balance amount from and out of advance rentals after deducting rents for a period of five months? (ii) Whether the respondent (plaintiff in O.S.No.7122/2012) is entitled for recovery of Rs.10,000/- with interest at the rate of 8% per annum with Rs.1,00,000/- towards security and maintenance charges?"
16. Admitted facts of appellant being the tenant under respondent in respect to the premises having been inducted therein in terms of the lease agreement dated 26.09.2008 is not in dispute.
There is also no dispute to the fact that the appellant by notice at Exhibit-P3 had called upon the respondent to refund the amount of security deposit and the balance amount from and out of the advance rentals simultaneously he handing over the keys. 17. Appropriate to extract the above said notice dated 28.02.2009 at Exhibit- P3 and reply notice dated 27.03.2009 issued to the notice by respondent at Exhibit-P5 which reads as under:
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Exhibit P3
”xxx
1. I and my father approached you through the broker Sri.Khuram Abid, and on coming to know that you are intending to let out the Residential Apartment bearing No.G3 also known as Unit No.003 in the Ground Floor of the Building "ARAMBHA" situated at No.23/3, Alfred Street, Richmond Town, Bangalore-560 025, talks I and my father are held in that connection. 2 You represented
(i) that you are the owner of the above Apartment;
(ii) that you would be in a position to hand over vacant
possession of the said Apartment on 01-10-2008
(iii) that you would be in a position to rectify the
defects, drawbacks and replace the sanitary,
plumbing and electrical items in the premises, viz.,
(a) the walls around the entire leased portion which
are always wet. (b) there are no proper sanitary connections and
plumbing connections in bathroom. (c) there is not sufficient water supply in the
Apartment
(d) all the electrical switches in the premises have
totally collapsed and which are in no working
condition. (e) the geyser and plumbing equipment are
substandard. (f) to remove the substandard electrical operators
which are erratic. (f) to maintain lawn/garden area. 3. You also showed us the apartment and apprised us about the pending works to be completed. You also represented that you would be interested in letting out the said Apartment on monthly rent of Rs.34,000/-Rupees Thirty Four Thousand Only).
You further stated that you would be requiring the entire 11 months rent in advance in
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order to enable you to complete the balance works pending in the apartment. 4. Based on the above representation and the assurance given by you I agreed to take the above Apartment on rent subject to your completing the, balance works in the apartment. You readily agreed to do so subject to, payment of rent for a period of 11 months in advance in a sum of Rs.3,74,000/- (Rupees Three Lakhs Seventy Four Thousand Only) and also another sum of Rs.2,04,000/- (Rupees Two Lakhs Four Thousand Only) towards the security deposit. 5. Accordingly, a Lease Deed dated 06-09-2008 was entered into between you and me and collected in all a sum of Rs.5,74,000/- (Rupees Five Lakhs Seventy Four Thousand Only) as under:
(i) Rs.3,74,000/- (Rupees Three Lakhs Seventy Four Thousand Only) vide Cheque bearing No.584697 dated 5-10-2008 and
(ii) Rs. 2,04,000/- (Rupees Two Lakhs Four Thousand Only) vide Cheque bearing No.584696 dated 26-9-2008. 6. I and my father took your words and paid the amount in good faith in the hope and belief that you would honor your commitment. 7. You delivered possession of the above premises on 01-11-2008 and assured that you will rectify the defects, drawbacks and replace the sanitary, plumbing and electrical items in the premises which I and my father identified and brought to your notice. 8. There are several defects in the Leased Premises which have not been rectified in spite of repeated requests and demands. Some of the defects which have been identified and brought to your notice are stated hereunder
8. It is strange that after collecting the advance rent in a sum of Rs.3,74,000/-(Rupees Three lakh Seventy Four Thousand Only) and also Security Deposit of Rs.2,04,000/- (Rupees Two Lakhs Four Thousand Only), you have not honored your commitment to complete and rectify the defects, drawbacks and replace the sanitary, plumbing and electrical items in the premises as promised, in spite of repeated requests. You have not bothered to do the pending works and failed to keep up your promise to make the house a habitable one. Therefore, I have no intention
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to continue to live in premises and accordingly, I hereby terminate the lease by giving time till 31.03.2009.
You may refund the security deposit of Rs.2,04,000/- (Rupees Two Lakhs Four Thousand Only) and the advance rent paid in a sum of Rs.3,74,000/- (Rupees Three Lakhs Seventy Four Thousand Only after adjusting the rent for 5 months and viz., Ist November 2008 to 31st March 2009. 9. Please take notice that.,
(i) you are hereby called upon to refund the entire security deposit of Rs.2,04,000/- (Rupees Two Lakhs Four Thousand Only) and a sum of Rs. 2,04,000/- from out of Rs. 3, 74,000/- as advance rent on or before 31-03-2009, failing which, I have no option except to proceed in, accordance with law holding you liable for all costs and consequences. This is without prejudice to my rights to claim damages and also to claim refund of the excessive rents from November 2008 till 30-03-2009. (ii) I would be delivering vacant possession of the premises on 31-03 2009 or even earlier provided you refund the aforesaid amount. If you fail to refund the amount as demanded, I am under no obligation to pay the rent from 01-04-2009 onwards until you hand over the refund. (iii) You would be liable to pay interest at the rate of 18% per annum on the said sum of Rs.4,08,000/- from 31-03-2009 till the date of payment". Reply notice -Ex.P5:
"I am in receipt of your letter dated 28.02.2009 in respect of the subject matter. In this connection I wish to reply as under:-
1. Before entering into the agreement you inspected the apartment and only after ensuring that it was suitable to your requirements did you enter into agreement with me. 2. Secondly, your father, a central government employee was required to enter into the agreement with me but for various reasons, best known to him and you, you chose to be the Lessee. - 17 -
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3.
I understand from the association looking after the maintenance of the building that they have visited the apartment several times to rectify whatever problems that have been informed to them and that all the electrical and sanitary fittings are working well. In the past one month, you have deliberately not allowed me nor the association staff to address the pending issues you have at the apartment for reasons best known to you. 4. On my part, I have tried my level best to provide you with whatever was required as per the agreement entered into between us. 5. I have also learnt that you have not paid brokerage to your broker Mr. Khuram Abid of Abids Estate Agency, which does not speak very high about your business ethics. 6. I have reliably learnt that you have obtained admission into a college in Chennai and required to move there to pursue your further education and to achieve this end you are trying to find reasons for vacating the apartment and terminating the tenancy. 7. The lease deed entered into between us does not permit the Lessee to terminate the same before the expiry of 11 months. In view of this I am unable to accept early termination of the Lease Deed. 8. However, since you have decided to vacate the apartment, I will retain 11 months rent paid in advance in full as initially agreed between us very clearly and refund only your deposit amount of Rs.2,04,000/ after deducting unpaid maintenance charges to association, electricity bills and damages if any. 9. In view of what I have stated above, I will be present on 31.03.2009 to take over possession of my apartment and refund the sum which is due as explained above". 18. The dispute is only with reference to paragraphs 7 and 8 of the reply issued by the respondent.
The points raised above will have to be adjudicated with reference to the
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contention of the respondent as noted above at paragraphs 7 and 8 of the reply. 19. Though learned counsel for the respondent vehemently submitted the lease agreement dated 26.09.2008 did not provide any clause for the appellant to terminate, she fairly submits that there is no express clause prohibiting the appellant to terminate the lease either. All that the appellant had demanded while offering to hand over the premises was refund of interest free security deposit and the balance amount from and out of the amount of Rs.3,74,000/- which also would amount to Rs.2,04,000/-. Bonafides of the appellant in handing over the possession as rightly pointed out by the learned counsel for appellant is evident from the fact of he issuing the notice at Exhibit-P3, and filing of the suit in O.S.No.3022/2009, as well as memo on 27.03.2010 and also filing of the petition in W.P.No.23104/2010. This series of acts by the appellant would only indicate that he appears to have not intended to take undue advantage of the situation. - 19 -
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20. Respondent on other hand had insisted that unless and until appellant paid him 11 months rent, he would neither accept the possession nor the keys. 21. This dispute at the most in the considered view of the Court would crystallize by the very own claim of the respondent to the extent of 11 months rent and not beyond that. Anything thereafter, in the considered view of this Court cannot be attributed to the appellant. As the respondent himself in his deposition admitted that the appellant had stayed in the premises upto 31.03.2009. Even if the lease period of 11 months is calculated, same would expire on 01.09.2009. 22.
The trial Court has found that the appellant having taken possession of premises is liable to pay the rental till he actually vacated and handed over possession, without adverting to the core dispute between the parties. Had the trial Court appreciated the contents of Exhibit-P3 and Exhibit-P5, which would have thrown light on actual dispute between the parties, in the considered view of this Court, the trial Court would not have come to the conclusion as found in the impugned judgment and decree. In the absence of any express
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clause in the lease agreement the respondent cannot insist for payment of rents for the period which is not occupied by the appellant. 23. Points answered accordingly. 24. Nonetheless considering the passage of time in the suit this Court deems it appropriate that the judgment and decree passed by the trial Court be modified directing the appellant to pay the monthly rents for a period of 11 months together with electricity and maintenance charges and the respondent shall refund the balance amount if any to the appellant. 25. Since the rentals for 11 months as already paid at the time of entering into lease, the same stands set off/adjusted. 26. As regards the refundable security deposit of Rs.2,04,000/- the said amount is stated to have been refunded. 27. Appellant has deposited a sum of Rs.2,00,000/- before this Court in terms of the interim order dated 09.01.2020. Out of the said amount a sum of Rs.30,932/- being maintenance
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charges at the rate of Rs.2,812/- for a period of 11 months (Rs.2,812x11= Rs.30,932/-) shall be paid to the respondent. Balance sum of Rs.1,69,068/- shall be refunded to the appellant. Accordingly, appeals stand disposed of. Sd/- (M.G.S. KAMAL) JUDGE
RU/SBN List No.: 1 Sl No.: 2