Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.470-2018 L.C.SU no.2717-2017
CNR MHCC01-001860-2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.470 OF 2018
IN
L.C. SUIT NO.2717 OF 2017
Shri Condrad Peter Menezes ]...Plaintiff.
Versus
Municipal Corporation of ]
Greater Mumbai & Ors. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 12th February, 2018.
Mr. A.J. Bhor, advocate for plaintiff.
Mrs. Patil, advocate for BMC.
Mr. Mohit Jadhav i/b Megha Shigavan, advocate for defendant no.3
ORDER
1. In a suit for declaration and permanent injunction, the
plaintiff has taken out this notice of motion for multiple temporary
reliefs, namely for restraining the defendants from evicting the plaintiff
from stall no.448 (for short, “suit premises”) located at Mahatma Jotiba
Phule Market without following due process of law; secondly, for
restraining the defendant Corporation from transferring the license of
the suit premises in the name of a third party; thirdly, for restraining
the defendant from obstructing the plaintiff's possession of the suit
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premises and lastly, for restraining the Corporation from giving
possession of the transit accommodation to the defendant no.3 in lieu of
the suit premises.
2. According to the plaintiff one Mr. Ludwick Fernandes was
the original licensee in the suit premises. In 2009, on his death the
license was transferred in the name of his wife defendant no.3. The
plaintiff applied the defendant nos.1 and 2 to transfer the suit premises
on sublet basis on the basis of Nokarnama converted into sublettee.
3. According to the plaintiff, his father was running a grocery
business in the suit premises since 1952 to 1981. After his death, the
same business is continued by the plaintiff. The original licensee Mr.
Ludwick had executed Norkarnama in the name of the plaintiff. After
death of Mr. Ludwick, the defendant no.3 refused to execute
nokarnama. However, the plaintiff continued with the business in the
suit premises. According to the plaintiff, the suit premises is in his
possession for last 60 years. Neither the defendant no.3 nor her
deceased husband ever attended the suit premises.
4. The defendant no.3 opposed the motion by contending that
the plaintiff was the servant. The Nokarnama was so registered from
1981 to 2007 from time to time. On the death of Mr. Ludwick, the
Nokarnama was discontinued. Considering the request made by the
plaintiff and considering the relationship inter se the defendant no.3
appointed plaintiff as an agent of the defendant no.3 at the suit
premises. However, no agreement was executed inter se. According to
her she has paid the requisite charges, compensation etc. to the
defendant Corporation. On 26.10.2017, the defendant Corporation
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issued letter to defendant no.3 to vacate the suit premises for the
purpose of renovation. In December, 2017 the defendant no.1 has
provided temporary alternate accommodation to defendant no.3. The
defendant no.3 has executed a Nokarnama in the name of Mr. Anil, and
therefore, the suit has become infractuous. According to the defendant
no.3 the plaintiff was never in a possession of the suit premises. She
has also denied the execution of any document by late Mr. Ludwick in
favour of the plaintiff.
5. The defendant Corporation apart raising usual pleas, has
contended that the license in respect of the suit premises stands in the
name of defendant no.3. According to them, the reallotment or
transfer of license in respect of any space / stall shall took place as
provided in Standing Committee Resolution nos.1235/1236 dated
10.1.1996. The consent of original licensee is necessary for re
allotment or transfer of the stall except the case of death. The licensee
can keep a servant by registering Nokarnama and paying charges. The
Nokarnama is valid for a period of one year. It is also stated that the
Nokarnama cannot be converted into sublease without consent and
permission of the original licensee.
6. The plaintiff by filing rejoinder has denied contentions
raised by the defendants. According to him, on 18.7.2017 he had
applied for transfer of suit premises to defendant Corporation.
However, his request is not yet considered. The defendant no.3 has
suppressed material facts. She refused to execute Nokarnama, though
she was never in possessions of the suit premises.
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7. Heard respective advocates. They have made submissions
in consonance with the contentions raised by the respective parties.
The Learned Advocate for the plaintiff has placed reliance on the
judgment dated 24.12.1998 passed in L.C. Suit no.7122 of 1974 by the
City Civil Court, Bombay to the effect that the custody of the documents
is very important. All the receipts are produced from the plaintiff's
custody which indicates that payments of compensation and license fee
etc. have been made by the plaintiff during the entire period and
therefore, the plaintiff is in long standing possession, use, occupation of
the suit premises and the same should be protected.
8. On the other hand, the Learned Advocate for the defendant
no.3 has placed reliance on the ratio laid down by the Hon'ble
Supreme Court in the case of Southern Roadways Limited vs. S.M.
Krishnan reported in A.I.R. 1990 Supreme Court 673.
“It was a matter in dispute as to
whether the agent after revocation of his
authority is entitled to remain in possession
of the premises of the principal and interfere
with the business thereof. It was held that
an agent holds the principal's property only
on behalf of the principal. He acquires no
interest for himself in such property. He
cannot convert the property into any kind or
use.”
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9. Considering the submissions and the copies of documents
placed on record, the following points are decided for the reasons stated
below:
SR.
NOS.
POINTS FINDINGS
1 Whether the plaintiff has made out a prima
facie case?
In the negative.
2 Whether the points of balance of
convenience, hardship and irreparable loss lie
in favour of the plaintiff?
In the negative.
3 Whether the plaintiff is entitled to the reliefs
of interim injunction as prayed for?
In the negative.
REASONS
As to point no.1 to 3:
10. Prima facie it is undisputed that the original licensee was
Mr. Ludwick. After his death, the license in respect of the suit premises
has been transferred in the name of his wife defendant no.3. It is also
prima facie undisputed that the earlier the father of the plaintiff was
doing the business and after his death since 1981 till 2007 till the death
of Mr. Ludwick, the plaintiff was doing the business. Even thereafter,
he continued with the business in the suit premises. The copies of
license and Nokarnama placed on record prima facie support the same.
Similarly, the copies of receipts relating to the payment of license fee
and compensation etc. are issued in the name of defendant no.3.
However, according to the plaintiff, those are in custody of the plaintiff
and therefore, it should be inferred that the plaintiff is in long standing
possession, use and occupation of the suit premises, as he is making the
payments thereof.
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11. It is prima facie undisputed that an incident of fire took
place at the suit premises and accordingly the police authorities
recorded panchanama and statement of the plaintiff in or about 2010.
12. However, copy of permission dated 13.9.2010 given by the
defendant Corporation for carrying out repairs to the suit premises
appears to have been issued in the name of the defendant no.3. There
are other private tax invoices, certain receipts, order forms given by
M/s. Victory Stores and showing the name of plaintiff as proprietor or
certain receipts regarding the periodical verification of weights and
measures issued by concerned authorities.
13. The copy of notice dated 24.4.2017 has been issued by the
defendant Corporation in the name of the defendant no.3 directing to
deposit the arrears of license fee and compensation shows that after the
death of original licensee, the defendant no.3 is the licensee and the
same position is undisputed prima facie.
14. The plaintiff has much harped upon the copy of letter dated
1.8.2000 issued by the Mr. Ludwick Fernandes to the defendant
Corporation prima facie shows that the original licensee was the
maternal uncle of the plaintiff and had replied to the show cause notice
issued by the defendant Corporation and made a request to renew his
license. Some statements in the said letter are prima facie disputed by
the defendant no.3 by contending that those are subsequently added by
the plaintiff. The question whether the said letter is real one or
fabricated will be decided on the touch stone of the evidence.
Therefore, at this moment it is not expedient to infer anything whether
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Mr. Ludwick had expressed his desire to transfer the license in the name
of his nephew, probably the plaintiff. The plaintiff has not produced
any document to show prima facie that in furtherance of such letter
dated 1.8.2000 Mr. Ludwick filed certain documents to the defendant
Corporation and accordingly, the license was transferred in his name or
it is under process till today.
15. It appears from the record prima facie that the defendant
Corporation is the owner of the entire property, whereas the defendant
no.3 is the licensee in the suit premises, and that the plaintiff is doing
the business at the suit premises.
16. Nothing has been placed on record by the plaintiff that
after the death of Mr. Ludwick, the defendant no.3 continued with the
Nokarnama from year to year and even at present such Nokarnama has
been executed and is subsisting. The plaintiff has also not shown prima
facie that he has been accepted as licensee after the death of Mr.
Ludwick at any time till today.
17. On the other hand, the Learned Advocate for the defendant
Corporation submits that the entire process of renovation of the
Mahatma Jotiba Phule Market has been stalled due to order of status
quo. According to her, the notice of motion is required to be dismissed.
18. From the aforesaid facts prima facie it can be gathered that
the plaintiff himself in use and occupation of the suit premises on the
basis of permission granted by the Mr. Ludwick and Nokarnama
executed by him from time to time. The Hon'ble Supreme Court in the
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case of Maria Margarida Sequeira vs. Erasmo Jack De Sequieria
reported in (2012)5 Suprme Court Cases 370 has laid down that
“a caretaker or servant cannot claim possession
in his own right. No one acquires title to the
property, if he/she was allowed to stay in premises
gratuitously. Even by long possession of years/decades
such person would not acquire any right or interest in
the property. The caretaker, watchman, servant can
never acquire interest in the property irrespective of
his long possession. He has to give possession
forthwith on demand. The Supreme Court has
observed that the Courts are not justified in protecting
their possession or possession of a person allowed to
live in the premises for some time as a friend, relative,
caretaker or servant. Protection can only be granted
or extended to a person who has valid, subsisting rent
/ lease / license agreement in his favour (emphasis
added). A caretaker is an agent who holds property
of principal only on behalf of the principal.”
The Hon'ble Supreme Court crystallized the principles in
paragraph no.97 of the said authority as above.
19. Thus, considering the documents on record and the ratio
laid down by the Hon'ble Supreme Court in the case of Maria (supra),
the plaintiff has failed to make out a prima facie case, so as to grant him
some protection. Therefore, the points of balance of convenience,
hardship and irreparable loss do not lie in his favour. He is not entitled
to multiple interim reliefs.
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20. The Learned Advocate Mr. Bhor representing the plaintiff
prays for continuation of protection for two weeks in order to facilitate
the plaintiff to approach the Hon'ble High Court. On the other hand,
the Learned Advocate for the defendant Corporation strongly objected
to extend such protection any more on the ground that the entire
project of renovation is withheld. Learned Advocate Mr. Bhor also
submits that the representation made by the plaintiff is also not
considered by the defendant Corporation. Considering the submissions
and peculiar facts of this case and withholding the entire process of
renovation of Mahatma Jotiba Phule Market, the prayer of extention of
protection cannot be granted, as public interest at large should prevail
on the alleged interest of plaintiff.
21. Accordingly, point nos. 1 to 3 are answered in the negative
and following order is passed:
ORDER
1. Notice of Motion no.470 of 2018 is dismissed,
2. Parties to bear their respective costs.
3. Dismissal of this notice of motion will not bar the defendant
Corporation from considering the application of plaintiff for
granting license on its own merits.
Sd/
(M.S. Deshpande)
Judge,
City Civil Court, Mumbai.
Dated: 12.02.2018
Dictated on : 12/02/2018.
Transcribed on : 13/02/2018
Signed by HHJ on : 15/02/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 15.02.2018 At 03.30 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
12.02.2018
JUDGMENT/ORDER signed by
P.O. on
15.02.2018
JUDGMENT/ORDER uploaded
on
15.02.2018
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