Umarji v Dhevatara Properties Co Ltd (CC 26/2013) [2018] SCSC 8182 (29 May 2018)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CC26/2013 [2018] sese 55cJ- ADAMUMARJI Plaintiff versus DHEVATARA PROPERTIES eo LTD Defendant Heard: Counsel: Mr Juliette for plaintiff Mr Rouillon for defendant Delivered: 30 May 2018 JUDGMENT Robinson J The background [1] This suit is concerned with a complex of four apartments located on Praslin on the land comprised in title number PR1981 (hereinafter referred to as "the demised premises"). Plaintiff, Mr Adam Umarji, has been at all material times the owner and landlord of the demised premises. Defendant, Dhevatara Properties Co. Limited, (hereinafter referred to as "Dhevatara") has been at all material times the tenant of the demised premises. It was not in dispute that Mr Umarji and Dhevatara verbally agreed the lease. Mr Umarji issued these proceedings seeking damages for breach of the lease as follows - "(i) (ii) (iii) (iv) (v) (vi) (vii) The Defendant due for the period of 15 July 2012 to August 2012; is in arrears of rent in the sum of USD 4000.00/ is in arrears of rent shortfall ofUSD 1800.00/- The Defendant for the period 15 May 2012 to 14June 2012 and 15 June 2012 to 14 July 2012; The Defendant has breached terms and conditions (ii) to (ix) as stipulated above in paragraph 3 of this Plaint by failing to maintain and upkeep the outside boundary walls as well as internal rooms in the said demised premises; The Defendant is in further breach of the said lease agreement by having many items missing from the demised premises, which have not been replaced. These items include microwave cookers, as well as other kitchen and bathroom accessories and utensils; The Defendant is in further breach of the said lease agreement for having damaged or allowed to be damaged the following items: - mattresses, is also damage to the plumbing system, damage to the water heaters and all air conditioning units are beyond economical pillow cases, armchairs and sofas. There repair; The full extent of the Defendant's breaches and remedies thereto are described in the report of Quantity Surveyor & Property Consultant, Nigel Antoine Roucou dated 27 September 2012, annexed herewith as Annex A; In further breach of the lease agreement, for purposes other demised premises dwelling in that material/equipment workers.". the Defendant used the than that of a private it used the demised premises as a store for construction excessive house and to [2] The Plaint averred that Mr Umarji suffered loss and damages as a result of the breach of the lease by Dhevatara particularised as follows - "Unpaid Rent USD 5800.00 @J SR 13.30 = Works required re-instating the demised Premises to its original condition, wear and tear expected SR 77, 140.00 SR 101,030.00 furniture, fittings and Missing/Damaged equipment Consequential loss of rental as a result of the breaches by the Defendant and the time it will take to reinstate the demised premises to its original condition USD 48000 @ SR13.30 = Less Deposit Held Total SR 152,055.00 SR 638, 400.00 -SR63514.00 SR 905,111.00 [3] Mr Umarji prayed the court to enter judgment against Dhevatara in the sum of905) 11.00/ rupees plus interest and costs. [4] Dhevatara filed a Defence denying the claims of Mr Umarji and asked the court to make order dismissing it with costs. In the alternative, Dhevatara claimed to set offMr Umarji's claims against the inconvenience allegedly suffered by Dhevatara's staff; the "corrections" and "improvements" to the demised premises carried out by Dhevatara; and the rental deposit payment held by Mr Umarji. With costs in favour of Dhevatara. The evidence [5] Mr Umarji gave evidence and called Mr Vivian Rassool and Mr Nigel Roucou to give evidence and Dhevatara called Mr Gavindish Westlake. [6] Briefly summarised below are the relevant facts presented in the witnesses testimonies. [7] The evidence of Mr Rasool. Mr Rasool is an estate agent for the Arriva Real Estate Seychelles. Arriva Real Estate Seychelles advertised the demised premises, owned by Mr Umarji, for rental. At about October or November, 2009, Dhevatara's representatives contacted Arriva Real Estate Seychelles for rental of the demised premises. Representatives of Mr Umarji and Dhevatara visited the demised premises. After the said visit, representatives of Dhevatara intimated to Mr Umarji that Dhevatara was interested to lease the demised premises. An inventory of the demised premises was conducted before Dhevatara took possession of the demised premises. On 10 November, 2009, Dhevatara took possession of the demised premises for a term of 12 months at a monthly rent of United States Dollars (USD) 3000.00/- or USD 3100.00/-. Dhevatara paid 3 months deposit at the beginning of the lease. The agreement required Dhevatara to use the demised premises for the dwelling of about eight or nine of its employees. [8] Dhevatra did not complain about the condition of the demised premises at the onset of the lease as alleged in its Defence. Dhevatara complained about the condition of the sliding glass doors towards the end of the lease. In mid-2010, or mid-2011, Mr Umarji emailed him complaining about the condition and overcrowdedness of the demised premises, (Exhibit 2.32 of PI). [9] After the termination of the lease, at about November, 2010, the lease was subsequently renewed for different periods of time until about May, 2012, see exhibits 2.16, 2.17, 2.18, 2.24 and 2.25 of Exhibit PI. About May, 2012, Mr Umarji informed Dhevatara that the monthly rent will be increased to USD 4000.00/-, if Dhevatara did not notify him of the date that it will vacate the demised premises. About May, 2012, Dhevatara, by email, notified Mr Umarji that it will vacate the demised premises (Exhibit PI). Dhevatara did not make any payment to Mr Umarji in the sum of USD 4000.00/-. Dhevatara by an email, (August, 2012), notified Arriva Real Estate Seychelles that it will vacate the demised premises in August, 2012, (Exhibit PI). In August, 2012, Dhevatara vacated the demised premises and delivered the key to Arriva Real Estate Seychelles. Dhevatara did not serve notice to quit. Mr Rasool was not present at the handover of the demised premises. Mr Westlake emailed Mr Umarji stating that Dhevatara will restore the demised premises to its original condition after the termination of the lease. [10] When cross-examined, Mr Rasool confirmed that before Dhevatara took possession of the demised premises, a representative of Dhevatara asked, by email, dated 30 October, 2009, for new air conditioning units to be installed on the demised premises. He reiterated that Mr Umarji informed him about the condition and overcrowdedness of the demised premises. [11] The evidence of Mr Roucou. Mr Roucou is a quantity surveyor. Mr Umarji appointed him "to value the cost of reinstating the building to its condition prior to the lease including assessing the furniture and equipment, based on an inventory list provided to him". Mr Umarji appointed Mr Roucou to do the valuation after Dhevatara had vacated the demised premises. The demised premises comprised of four apartments - two apartments with two bedrooms each; and two with one bedroom each. Mr Roucou, Mr Umarji and Mr Wesley inspected the demised premises on 24 September, 2012. Mr Roucou obtained an inventory list from Mr Umarji, Mr Roucou, Mr Umarji and Mr Westlake compared the present condition of the demised premises to what it was according to the inventory, excluding anything that had deteriorated by wear and tear. Mr Roucou made notes and took photographs. [12] The report - REINSTATMENT COST AND INVENTORY ASSESSMENT-YASAD APARTMENTS, ST SAUVEUR, PRASLIN, is before the court as exhibit P2A. The UPDATED INVENTORY is before the court as exhibit P2B. The REINSTATEMENT WORKS SCHEDULE is before the court as exhibit P2C. Based on Exhibit P2A, the "reinstatement cost" was 101,030.001- rupees and the cost of the "missing/damage furniture and equipment" was 152,055.001- rupees. Exhibit P2C detailed the "reinstatement works" to be undertaken to restore the demised premises to its condition before the lease agreement. Mr Roucou then referred the court to the photographs he took during the inspection of the demised premises. [13] Photographs 9 of Exhibit P2A and I(A) and I(B) of Exhibit P3 showed an electrical installation being in need of maintenance to restore it to its working condition. Photographs 11 of Exhibit P2A and 4A of Exhibit P3 showed a door in need of maintenance - "repainting and adjusting". Photographs 12 of Exhibit P2A and 12B of Exhibit P3 showed a mattress which was too small for the bed (single mattress). He stated that the original mattress, which fitted the bed, must be missing. Photographs 13 of Exhibit P2A and 13A of Exhibit P3 showed a missing cushion and a missing dining table, respectively. [14] Photograph 14 of Exhibit P2A showed an air conditioning unit, which was missing some parts. Photographs 15 of Exhibit P2A and 8A of Exhibit P3 showed some tiles, which were different to the original ones. In Photograph 15 of Exhibit P2A the bidet tap was missing. Photographs 2A, 2B and 3B of Exhibit P3 showed the air conditioning units in their current condition and part of the exterior wall of the demised premises in need of repainting. Photographs 5A of Exhibit P3 showed a toilet in need of cleaning. He also pointed to a "loose pipe" on the floor, which, he stated, needed to be refitted. Photograph 5B of Exhibit P3 showed a shower, which needed to be cleaned and partially grouted. [15] Photograph 6A showed a washing basin in need of cleaning and "re-sealing". Photograph 6B showed a bidet in need of cleaning. Photograph 7A of Exhibit P3 showed a missing tap, which had to be replaced. Photograph 7B of exhibit P3 showed a washing basin in need of cleaning. Photograph 8B of Exhibit P3 showed a new "copper pipe", which had been incorrectly fitted. He stated that the original pipe had been removed. He stated that such a pipe is always "concealed behind the wall". In the photograph it has been fitted to the wall. Photograph 9A of Exhibit P3 showed an air conditioning unit, which needed to be replaced because it was not working properly. Photograph 9B of Exhibit P3 showed a worn out mattress. Photograph lOA showed that a refrigerator was missing from the place where it was kept. Photograph lOB of Exhibit P3 showed that cushions, on the main chair, were rmssmg. [16] Photograph 11A of Exhibit P2 showed a "different shower with broken pipes". A pipe has been fitted to the wall (see photograph 14A showing a typical shower). Photograph lIB of Exhibit P3 showed a missing curtain. Photograph 12A of Exhibit P3 showed that the socket of the air conditioning unit has been pulled out of its fitting. Photograph 13B of Exhibit P3 showed a bathroom in need of cleaning. Photograph 15A of Exhibit P3 showed an air conditioning unit with its cover removed and part of its electrical connection cut off. He has requested for the unit to be replaced. Photograph 15B of Exhibit P3 showed that "general maintenance" needed to be undertaken to the kitchen. [17] When cross-examined, Mr Roucou reiterated that Mr Urnarji gave him an inventory list; and that he conducted the inspection, of the demised premises, in the presence ofMr Umarji and Mr Westlake. Learned Counsel contended that the value of the fridge was unreasonable. Mr Roucou's response was that it was an average price. He further explained that for each item an estimated value was obtained by comparing the item in question to a similar item for which the value was known. Mr Roucou stated that 1200.00/- rupees for a "16 pieces dining set" was reasonable. Mr Roucou denied the suggestions of Learned Counsel that he had made up the figures upon the instructions of Mr Umarji; and that matters such as grouting were the responsibility of Mr Umarji and not that of Dhevatara. In relation to Exhibit P3, photographs lA and IB, Learned Counsel only made the point that Mr Roucou had no evidence that Dhevatara had removed the wires and casing. [18] Concerning the issue of repainting the wall, Learned Counsel suggested that the" building looksfine". Mr Roucou explained that the building may "lookfine" in the photograph, but in reality it did "not lookfine ". The building had stains on it. [19] Learned Counsel had no complaint about the "repairexternal drainage at apartment 3 inc! new soak way", which Mr Roucou had valued at 6,000.00/- rupees. [20] With respect to the door, Learned Counsel suggested that it was "weathered by natural elements"; and that he did not see any damage to it. Mr Roucou stated that the issue with the door in question was not wear and tear, but rather it was about its "misuse". He added that the door will have to be repainted. [21] Mr ROllCOUdenied the suggestion of Learned Counsel that the damages to the demised premises shown in photographs 6A, 6B, 7A and 7B were part of normal wear and tear. With regards to the "different tiles" shown in photographs 8A and 15 of Exhibit P2A, Mr Roucou stated that their valuation was based on the replacement of those tiles. Mr Roucou denied the suggestion of Learned Counsel that the stained mattress shown in photograph 9B, was as a result of normal wear and tear. With respect to the air conditioning unit shown in photograph 9B, Learned Counsel suggested that it was broken, to which, Mr Roucou stated that he was unaware of such fact. Photograph 11A showed a missing curtain. [22] When questioned about an electrical socket that was not properly in its fitting, Mr Roucou explained that "there was something wrong with the socket and they had replaced the socket but they have not screw it backproperly " (proceedings 0/6 June 2014, at 1 45p.m., p.580/80). He stated that he had probably valued it at 100.00/-rupees. However, he could not locate the electrical socket in Exhibit P2C. With respect to the toilet and shower, Mr Roucou stated that they needed to be cleaned, to which Learned Counsel suggested that it was Mr Umarji's responsibility to do so. Mr ROUCOllalso identified a "loosepipe" depicted in photograph SA and a "shower pipe", which had been left on the floor, depicted in photograph SB. [23] Mr Roucou then stated that the building appeared to be a 'fairly recent building" (proceedings 0/6 June 2014 all.45 p.m., pg.60 0/80). He added that "90-95 percent 0/ these reinstatement should go toward the tenant; because if they had used the building properly, there would not have been these issues" (proceedings 0/6 June 2014, at 1.45 p.m., p. 610f80). [24] Mr Roucou explained wear and tear as follows- If you use a "Wear and tear to us is the normal uses of the building. building properly as I say, there should not be any major wear and tear on the building. Wear and tear would have mainly on the furniture or loose furniture and fittings as we call it. For example I was taken by the other side was the mattresses. Yes there will be wear and tear on the mattresses, it would lose its spring at the same time it would not be stained. You understand." . [2S] The evidence of Mr Umarji. Mr Umarji is a businessman. Mr Umarji is the owner of the demised premises. Dhevatara was the tenant of Mr Umarji at all material times. Miscellaneous documents relating to the lease of the demised premises and matters in dispute are before the court collectively as Exhibit P4. Mr Rasool of the Arriva Real Estate Seychelles negotiated the lease of the demised premises. The air conditioning units were repaired and other minor repairs were done at the onset of the lease. Dhevatra undertook such repair works and he [Mr Umarji] bore the repair costs. [26] The lease of the demised premises started on IS November, 2009, and it was for a duration of one year at a monthly rent of28,000.001- rupees. Dhevatara at the onset of the lease paid Mr Urnarji one month rent in advance, two months deposit and Goods and Services Tax in the sum of 96,000.00/- rupees. The demised premises was fully furnished. At the onset of the lease an inventory was done and photographs were taken. He stated that it was Dhevatara's obligation to keep the demised premises in good condition and tenantable repair [27] Mr Umarji visited the demised premises on 10 April, 2012, and noticed that it was not being used to house about eight workers, but rather it was being used to house about thirty to fourty workers. He also noticed that Dhevatara had altered all the "pipes" and had installed bunk beds on the demised premises; and that the demised premises was in a dilapidated state. Dhevatara was clearly not maintaining the demised premises. In addition, Dhevatara had fitted six or seven external showers on the demised premises without first obtaining his permission. Mr Umarji wrote to Mr Rasool, by email dated 11 April, 2012, (Exhibit P4 2.51), about the poor condition of the demised premises. Concerning the soakaway, Mr Umarji refused to repair it and attributed the damages to it to Dhevatara, which had housed thirty to fourty people on the demised premises. Concerning the air conditioning units, Mr Umarji argued that Dhevatara should have repaired them since he had already bore the costs, when Dhevatara replaced them. During the lease Dhevatara complained about the soak away pit and the broken sliding glass door wheels. [28] On 3 April, 2012, by email, Dhevatara wrote to Mr Umarji informing him that its construction team had left Seychelles; and that it was planning to house its senior hotel staff. Mr Umarji stated that he allowed Dhevatara's employees to remain on the demised premises after Dhevatara had told him that it will restore the demised premises to a better state. However, when Dhevatara did nothing, he decided to increase the rent by USD 1000.00/-. Dhevatara did not accept the increase in rent and within a month or two vacated the demised premises. Dhevatara did not give notice to quit, but only stated, by email, that it needed to vacate the demised premises by 14 August, 2012. [29] When Dhevatara had vacated the demised premises, Mr Umarji sent his cousin to take photographs of the state of the demised premises and he also instructed Mr Roucou to conduct a valuation. He visited the demised premises in the company of Mr Roucou and the representative of Dhevatara. Mr Roucou took photographs. Mr Umarji gave Mr Roucou some photographs (Exhibit P4 section) depicting the state of the demised premises prior to the lease. Mr Umarji also gave evidence about the damages which he alleged to have suffered. [30] Mr Umarji stated that it would be difficult to restore the demised premises to its original condition within a specified period of time, and, therefore, he was claiming one year "loss a/rental" in the sum ofUSD 48,000.001-. [31] When cross-examined, Mr Umarji stated that the demised premises was rented to Masons Travel for two years before they were leased to Dhevatara. He gave the same furniture to Dhevatara. In relation to the air conditioning units, he stated that he fitted those depicted in the photographs to the demised premises. Concerning the demised premises being overcrowded, he explained that he went on site and saw the workers; and that a representative of Dhevatara was also present on that day. The showers were still on the demised premises. He clarified that he received Dhevatara's notice to quit in July, 2012, but that he had expected to receive three months' notice commencing from July. It was suggested to Mr Umarji that most of his complaints relating to wear and tear, were petty and exaggerated, to which he denied. [32] The evidence ofMr Westlake. The evidence ofMr Westlake is to the following effect. Mr Westlake is Dhevatara's representative. He was not present when Dhevatara rented the demised premises. Dhevatara rented the demised premises to house its staff during the construction phase of a 5 star hotel. There were only nine members of staff staying on the demised premises. He was not aware about the condition of the demised premises at the onset of the lease and had neither seen an inventory list, nor a written lease agreement. He complained about the septic tank, the cleanliness of the demised premises, and the air conditioning units. [33] A month after the handing over of the demised premises, he met Mr Roucou at the demised premises. Mr Roucou took some pictures. He made his own report and corrected some errors made by Mr Roucou. He stated that as a project manager, he had sufficient quantity surveying experience. Miscellaneous documents, including his report, are before the court collectively as Exhibit D 1. He stated that the only time he saw an inventory list was when the owner came to claim the demised premises. [34] Mr Westlake agreed that there was a pipe protruding from a wall in one of the showers. He stated that it was a pipe installed to transfer water from the lower big tap to the shower, which caused no structural damage to the demised premises. With regards to the septic tank, he stated that no work was ever done to it. His company paid for a "tanker"to empty the septic tank on a monthly basis. He explained that the septic tank became a sewerage holding tank, which was why it overflowed. There were three Seychellois welfare staff, who were employed to clean the demised premises until Dhevatara's staff were repatriated. He accepted that showers were fitted outside because of a water problem. He stated that there would have been only about nine bunk beds on the demised premises. It was impossible to put two expatriate workers in a double bed together. [35] Mr Westlake gave notice of termination of the lease, on 27 May, 2012, when Mr Umarji wanted to increase the rent from USD 3100.00/- to USD 4000.00/-. With regards to the rent shortfall ofUSD 1800.00/- for the period covering 14 June, to 14 July, 2012, he stated that it was never accepted that they should pay USD 4000.00/-. He stated that three months' notice was an unacceptable period for the release of the demised premises. [36] Submission and analysis [37] This court has considered the evidence on record and the submissions of both Learned Counsel. [38] In his Plaint, Mr Umarji is seeking damages as follows - "Unpaid rent usn 5800.00 @ SR13.30 = SR 77,140.00" [39] Mr Umarji claimed unpaid rent as follows- " (i) (ii) The Defendant is in arrears of rent due for the period of 15 July 2012 to August 2012; in the sum of USD 4000.00/ The Defendant is in arrears of rent shortfall of USD 1800.00/- for the period 15 May 2012 to 14 June 2012 and 15 June 2012 to 14 July 2012". [40] As opposed to a written lease agreement which comes to an end at the expiry of the period mentioned in the lease, an unwritten lease will come to an end when one of the parties II gives notice of termination to the other observing the time-limit fixed by the local practice in accordance with Article 1736. [41] Mr Umarji, through Learned Counsel, in his written submissions, stated that he is longer seeking to recover the shortfall in rent arrears. Mr Umarji is only claiming damages in the sum ofUSD 3,100.00/- in unpaid rent. [42] It was not in dispute between Mr Urnarji and Dhevatara that Dhevatara was paying a monthly rent in the sum ofUSD 3100.00/-. On 23 July, 2012, Mr Westlake, by email, wrote to Mr Rasool informing him that" ... [fJollowingfurther internal discussions it has been decided to vacate the property by the14th August 2012. Regarding the outstanding rent, can we agree to use some of the initial deposit and discuss inventory replacement/repair. Excludingfair wear and tear.". [43] The evidence clearly established, on a balance of probabilities, that Dhevatara failed to pay rent due under the oral agreement for a lease for the period covering 15 July, 2012, to 14 August, 2012, in the sum ofUSD 3100.00/-. The court makes order awarding Mr Umarji the sum ofUSD 3100.00/- under this head. "Works required to re-instat[e] the demised Premises to its original condition, wear and tear expected" [44] Mr Umarji in his Plaint averred that he has suffered loss and damages as a result of breach of the lease by Dhevatara as follows. "Worksrequired to re-instat]e] the demisedpremises to its original condition, wear and tear expected" in the sum of 101,030.00/- rupees. [45] Article 1730 of the Civil Code of Seychelles Act provides that "[i]f an inventory of the condition of the premises between the landlord and the tenant has been made, the latter shall be bound to return the property in such condition as he received it according to the inventory excluding anything that has perished or deteriorated by wear and tear or by an act of God.". If no inventory of the condition of the premises has been made Article 1731 of the Civil Code of Seychelles Act applies. Article 1731 of the Civil Code of Seychelles Act provides that the tenant shall be presumed to have received the premises in good repair, suitable for the tenancy, and he shall return them in the same condition, unless there is evidence to the contrary. Note 30, JURIS-CLASSEUR CIVIL, Art. 1708 a 1762, states "30. - la presomption de I 'article 1731 s 'applique exclusivement aux reparations locatives, et non aux reparations de gros entretien (Cass. Civ. 26 janv. 1936: D. 1936, 148. - Trib. Civ. Seine 6 juill. 1912: Gaz, trib. 1912, II, 2, 864. ". The enumeration of the "reparations locatives" provided by Article 1754 of the Civil Code of Seychelles Act is not limitative (See Casso Civ. I, 6fev. 1963: D. 1963, 402). Article 1754 of the Civil Code of Seychelles Act provides - repairs, or those of minor importance which bind the tenant "Tenant's to the contrary, are those considered as such by unless there is agreement local practice; to shall fireplaces, chimney-backs, casings and mantelpieces; among others include repairs repairs these The replastering of the lower part of the walls oftlats and other residential premises up to the height of one metre. Floor slabs and tiles of rooms, when only a few are broken; Window panes, or other they are broken extraordinary occurrences resulting from acts of God for which the tenant cannot be held responsible; by hail stones unless Doors, windows, partitions or shutters of shops, hinges, bolts and locks.". [46] The presumption of Article 1731 can be defeated by evidence to the contrary, and this proof - "35 ... portant sur un jait materiel et non juridique peut etre faite par tous moyens, et notamment par temoins et par presomption, que I que soit I 'interet du litige. /I See Note 35 JURIS-CLASSEUR CIVIL, Art. 1708 a 1762, Casso Civ. 28juin 1892: D. P. 93, 1,378. Paris 18 mars 1895: D. P. 95, 2, 240. - Adde, Casso Req. 27 juill. 1896: D. P., I, 421 ... ". JURIS-CLASSEUR CIVIL, Art. 1708 a 1762, at note 36, states "36. - Le juge peut tenir - compte de fa vetuste des lieux lors de I 'entree en jouissance et distinguer entre les degradations selon qu 'elles resultent de I 'utilisation normale ou, au contra ire, anormale et abusive de la chose louee (Cass. Civ. III, 5 nov. 1976, Merly C. Geiswiller. - Paris 6 juill. 1973: Gaz. Pal. 1975, I, somm. 155). [47] Mr Rasool and Mr Umarji testified that an inventory of the demised premises between the representatives ofMr Urnarji and Dhevatara was carried out at the onset of the lease. The evidence established that only a site visit between the representatives of Mr Umarji and Dhevatara was carried out on 30 October, 2009, (email dated 30 October,2009,at 9:29 a.m.). There is no evidence be it documentary or otherwise to support Mr Umarji's contention that an inventory of the demised premises between Mr Umarji and Dhevatara was conducted before Dhevatara took possession of the demised premises. [48] Mr Roucou testified that he [Mr Roucou], Mr Umarji and Mr Wesley inspected the demised premises on 24 September, 2012. Mr Roucou obtained an inventory list from Mr Urnarji. They compared the present condition of the demised premises with such condition as Dhevatara had received it according to the inventory, excluding anything that had deteriorated by wear and tear. It is noteworthy that Mr Westlake, who gave evidence for Dhevatara was not present at the initial takeover of the demised premises and, therefore, could not give evidence as to whether an inventory was conducted between Mr Umarji and Dhevatara at the onset of the lease. In such circumstances, it is clear that the presumption of Article 1731 of the Civil Code of Seychelles Act applies. Dhevatara shall be presumed to have received the demised premises in good repair, suitable for the tenancy, and shall retum it in the same condition, unless there is evidence to the contrary. [49] With regards to the various claims of Mr Umarji, Leamed Counsel considered most of them to be unreasonable and undue. Mr Westlake wrote to Mr Rasool, by email, on 23 July, 2012, informing him that "followingfurther internal discussions it has been decided to vacate the property by the 14th August, 2012. Regarding the outstanding rent, can we agree to use the initial deposit and discuss inventory replacement/repair. Excludingfair wear and tear". Dhevatara did not adduce a counter report and did not object to the testimony of Mr Roucou and the production of the report. On a balance of probabilities, this cOUl1is of the view that the said expert report is credible evidence on which it can safely act. Another issue which also needs to be considered is the weight to be attached to the expert report. Having considered the report and the evidence of Mr Roucou, this court is satisfied that the reasons given by Mr Roucou for coming to the conclusion that he did is demonstrably valid, reliable and bome out by an objective evaluation and assessment. [50] In considering the issue in question, this court has considered the following. The duration of the lease agreement; the fact that the damages arose because of the abuse of enjoyment of or failure to maintain the demised premises by Dhevatara; and anything that had deteriorated by wear and tear. Mr Roucou stated that "90-95percent of these reinstatement should go toward the tenant", Applying Articles 1731 and 1754 of the Civil Code of Seychelles Act, the jurisprudence in this area of the law and having considered the evidence on record, this court is satisfied that it should make order awarding the sum of 92,654.001- rupees to Mr Umarji under the head "[w]orks required to re-instat]e] the demised Premises to its original condition, wear and tear expected". [Ninety-five percent of the sum claimed (101,030.001- rupees) = 97,530.001- rupees]. [51] This court did not award the following items valued in the sum of 3,500.001- - "a c attentive works at electrical/TV incoming mains ... 2,000.00 attentive works to roof above apartment 3 ... 1,500.00". This court is of the opinion that both items did not fall under minor repairs, which bind Dhevatara under Article 1754 of the Civil Code of Seychelles Act. [52] "Missing/damaged furniture, fittings and equipment" [53] Mr Umarji in his Plaint averred that he has suffered loss and damages as a result of breach of the lease by Dhevatara as follows. "MissingIDamagedfurniture,fittings and Equipment SRI 52, 055.00 ". [54] In the circumstances this court makes order awarding Mr Umarji ninety percent of the cost of the items under the head "[rJilissingldamagedfurniture, fittings and equipment" in the rupees) = sum of 136,849.501- rupees. [Ninety percent of the sum claimed (152,055.00/- 136,849.50/- ]. "Conseq uentialloss of rental as a result of the breach by Dhevatara and the time it will take to reinstate the demised premises to its original condition" [5 [55] Mr Umarji in his Plaint averred that he has suffered loss and damages as a result of breach of the lease by Dhevatara as follows. "Consequential loss ofrental as a result of the breach by Dhevatara and the time it will take to reinstate the demised premises to its original condition SR638,400.00 ". The evidence under this head is scant and brief. Mr Umarji did not provide this court with any expert evidence in relation to the issue in question. He only stated that it would be difficult to restore the demised premises to its original condition within a specified period of time and, therefore, he was claiming one year "loss of rental" in the sum of USD 48000.001-. Having considered the claim of Mr Umarji, on a balance of probabilities, this court makes order awarding him USD 9300.001- under this head, which it considers to be reasonable in all the circumstances of the case. [USD 3100 x 3 months' rent]. [56] Having considered the evidence on record this court is not satisfied that Dhevatara has established the matters alleged in its Defence namely, the inconvenience suffered by its staff and the "corrections" and "improvements" to the demised premises carried out by Dhevatara and dismissed its claim. [57] The Decision [58] In light of the above, this court awards Mr Umarji the sums of- (a) USD 12400.001-; and (b) 229,503.501- rupees less 63,514.00/- rupees = 165,989.501- rupees, and orders Dhevatara to pay to Mr Umarji the sums ofUSD 12400.001- and 165,989.501- rupees with interest at the legal rate payable as from 29 August, 2013, with costs. Signed, dated and delivered at Ile du Port on 30 May 2018 17