Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment 1291/2019
MHCC010033492019
Presented on : 22-03-2019
Registered on : 03-06-2019
Decided on : 24-11-2023
Duration : 4 Y. 8 M. 2 D.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
S.C. SUIT No. 1291 OF 2019
ZULFIKAR TASADDUK RATLAMWALA,
Son of Late Mr. Tasadduk Hussain Ratlamwala
Aged 65 years, Occupation : Business,
Indian Inhabitant of Mumbai, residing at
Flat No.601, 6th Floor, Pearl Harbour
Apartments, 9, Tulsiwadi, Chamsi Marg,
Mazgaon, MUMBAI-400 010.
Mobile No.9820411202
Email: mfin.hussainrtlamwala18@jibims.edu. ... Plaintiff
Versus
1. CARE CLEAN COSMOCEUTICALS
PRIVATE LIMITED
A Private Limited Company, at Unit No.82,
Apaki Industrial Premises Co-operative
Society Ltd., 2nd Floor, Masrani Lane,
Halavpul Road, Kurla (West),
MUMBAI – 400 070.
Mobile No.08080469205/09820469205
Email: drvmrgo@gmail.com
2. DR. RAMCHANDRAN V. MAHALINGAM
alias V.M. RAMCHANDRAN, Son of V.S.
MAHALINGAM, Aged 74 years,
Occupation: Business/Director, residing
at Welfare Student, 66/13, United
Student Home Road, MUMBAI-400 022
Mobile No.: 08080469205/09820469205
Email: drvmrgo@gmail.com
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3. PRAKASH MAHASUKHLAL SHAH
Full name not known, Adult,
Age not known, Occupation: Business/
Director, residing at Flat No.2104,
21st Floor, B-2, Sumer Trinity Towers,
New Prabhadevi Road,
MUMBAI – 400 025.
4. RAJESH VASUDEO DESAI,
Full name not known, Adult,
Age not known, Occupation: Business
Residing at 102, Shrinath Bhavan,
7, Tawade Road, Nikolaswadi,
Dahisar (West), MUMBAI-400 068. ... Defendants
Appearance
Learned Advocate Krishnagopal S. Tripathi for the plaintiff.
Ex-parte against the defendant Nos. 1 to 3.
Learned Advocate Mr. Sameer Sarambalkar for defendant No.4.
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 24th November, 2023
JUDGMENT
This is a suit for recovery of a sum of Rs.7,69,325 in words-
rupees Seven lacs Sixty-nine thousands three hundreds twenty five
only.
2. The plaintiff’s case in brief is that he is engaged in the business of
making cardboard boxes in the name and style as “Star Print”. The
defendant No.1 is a Private Limited Company. Defendant Nos.2 and 3
are the Directors and Officers in-charge of the defendant No.1 company.
The said defendant Nos.2 and 3 manage the day to day business
activities and affairs of the defendant company. The defendant No.4 is
a necessary party to the suit in peculiar facts and circumstances of this
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case. The defendants deal in the business of manufacturing and supply
of body-care products.
3. It is further averred that the plaintiff is the absolute owner of a
commercial unit/gala admeasuring 101.264 sq. mtrs. equivalent to
1090 sq. ft. area which is in addition to and consist of a mezzanine floor
of equivalent area being Gala No.73 situated on 2nd floor of Apaki
Industrial Premises Co-operative Society Limited (popularly known as
Siddhapura Industrial Estate) at Plot No.246, Masrani Lane, Halvapul
Road, Kurla (West), Mumbai-400 070 which is the suit premises. The
plaintiff is a member of said Apaki Industrial Premises Co-operative
Society Limited since 10.08.2002. Defendant No.4 is stated to be a
majority share-holder in defendant No.1 company.
4. It is further stated that the defendants were in the need of
commercial premises and somewhere in the month of January 2015, the
defendant Nos.1 to 3 with the knowledge and consent of defendant
No.4 approached the plaintiff and requested him to grant leave and
licence of the suit premises. Considering the reputation of the
defendants, the plaintiff agreed to give the suit premises on leave and
licence basis. Accordingly, on 15.01.2015, a Leave and Licence
Agreement came to be signed and executed between the plaintiff and
defendant Nos.1 and 2 with the knowledge and consent of defendant
Nos.3 and 4. The said Leave and Licence Agreement was registered
with the office of Sub-Registrar, Kurla-5, Mumbai Sub-Urban District
vide document No.1930 of 2015 on 15.06.2015. The term of said Leave
and Licence Agreement was fixed for 30 months commencing from
01.05.2015 and ending on 31.10.2017.
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5. The plaintiff further pleaded that, before letting out the suit
premises on leave and licence basis to the defendants, the plaintiff was
doing business of moulding in the said premises with full mezzanine
floor erected therein, with all the heavy electrical fittings fixtures
including Electric Short Circuit Breakers, fans. Doors were affixed to the
washrooms and main entrances of the suit premises. The suit premises
were well maintained and provided with all the amenities of light,
water etc. The height of the said premises is stated to be 27 feet. The
defendant being engaged in the business of manufacturing of cosmetic
products, they had to carry out certain modifications in the suit
premises by incurring additional expenses to affix removable furnitures
and fixtures therein. It was therefore, agreed between them that in case
the plaintiff sells or disposes of the suit premises before completion of
the agreed term of Leave and Licence, the plaintiff would be liable to
pay the defendant Nos.1 to 3 a lumpsum amount of Rs.3,00,000/- (in
words - rupees three lacs) as and by way of reimbursement of expenses
of those fixtures and furnitures affixed by the defendant Nos.1 to 3.
6. It is further the case of the plaintiff that after the expiry of Leave
and Licence period, the defendant refused to vacate the suit premises
and sought time. The plaintiff allowed the defendants to continue to use
and occupy the suit premises upon oral terms and conditions that the
defendants 1 to 3 will pay the plaintiff Rs.90,000/- per month as revised
licence fee under the negotiation and personal assurance by the
defendant No.4 that if the defendant Nos.1 to 3 commit default in
payment of revised licence fee of Rs.90,000/- per month, he will pay the
same. When the plaintiff asked for security deposit, the defendant No.4
told that he would increase licence fee from Rs.90,000/- to
Rs.1,10,000/- per month if the business goes good. The defendant No.4
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further assured the plaintiff that he will be responsible for any damage
caused to the suit premises by defendant Nos.1 to 3 and the suit
premises will be returned without removing any furniture and fixture. It
is also stated that the defendant Nos.1 to 3 agreed that they will not
remove the modification work carried out by them in the suit premises
and that they will vacate the said premises in good condition. The
defendant Nos.1 to 3 however, started committing default in making
payment of agreed revised monthly compensation amount of
Rs.90,000/-. From April 2018, the said defendants started paying short
amount of compensation causing the plaintiff mental torture and
financial difficulties. On the intervention of defendant No.4, the
defendant Nos.1 to 3 made good of short sum. However, on plaintiff’s
making grievance for short payment, the defendant Nos.1 and 2 made
attempt to get the plaintiff falsely implicated in molestation case
through one of the female employees of defendant No.1 which caused
mental torture and serious apprehension to the plaintiff. It is stated that
a sum of Rs.70,000/- is lying outstanding against the defendants on
account of such licence fee. The plaintiff had approached Vinoba Bhave
Nagar Police Station, Mumbai against the defendant Nos.1 to 3.
7. The plaintiff further averred that the defendant Nos.1 and 2
made attempt to get the suit premises seized by the police under
Section 145 of the Code of Criminal Procedure and make the plaintiff
approach Civil Court to recover possession of the suit premises, so that
they can freely enjoy the suit premises for number of years without
making payment of any licence fees and the plaintiff be deprived from
enjoyment of the suit premises and suffered legal financial burden.
However, due to police intervention, the defendant Nos.1 to 3 agreed to
hand over the suit premises to the plaintiff on or before 31.10.2018 in
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good condition. The defendants, however, wilfully damaged the suit
premises in extenso. When the plaintiff brought this fact to the notice of
defendant No.4, he showed his inability to interfere in the matter. The
defendant Nos.1 to 3 again started pressurising the plaintiff to pay the
amount which they incurred in modification work carried out in the suit
premises. At the relevant time since the suit premises were in the use
and occupation of the defendants, the defendants past conduct of
threatening the plaintiff to get involved in false molestation case and to
avoid long battle in the court of law, the plaintiff was coerced to issue a
cheque bearing no. 000118 dated 20.11.2018 for Rs. 2,06,000/- in
favour of defendant no.1 towards compensation for the furnitures and
fixtures. The defendants due to intervention of Police officials from
Vinoba Bhave Police Station ultimately, vacated the suit premises and
delivered its possession to the plaintiff on 31.10.2018. The plaintiff then
on 09.11.2018 issued “stop payment” instruction to his banker in
respect of the said cheque and on 17.11.2018 a notice to the
defendants.
8. The plaintiff would further plead that on taking possession of the
suit premises he noticed that the defendants caused severe damage to
the suit premises by removing and breaking the electric fitting, electric
short circuit braker, electric equipments /fittings, by letting the
electrical wires hanging, removing water tank, disconnecting the
electric lines, by removing staircase leading to the mezzanine floor,
making hole at the entrance of the said mezzanine floor, etc., for which
repairs and restoration the plaintiff has to incur expenses worth Rs.
7,69,325/-. Besides such expenses the plaintiff was made to suffer loss
of earning from the suit premises for two months. The plaintiff issued
the defendants notice dated 5.12.2018 through his advocate, claiming
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payment of said sum of Rs. 7,69,325/-. The defendant No. 2 replied
that notice vide his reply dated 8.12.2018 through his advocate, to
which the plaintiff sent rejoinder letter dated 22.12.2018. Defendant
No.4 also sent reply dated 5.1.2019 through his advocate and the
plaintiff sent rejoinder letter dated 15.1.2019 through his advocate to
said defendant No.4. There were other letter correspondence exchanged
between the defendant No.2 and the plaintiff. Ultimately the plaintiff
filed this suit for recovery of said sum of Rs. 7,69,325/- and future
interest @ 18% per annum on the said sum from the date of filing of
the suit till realization of the same with cost.
9. Since the defendant No. 1, 2 & 3 despite service of writ of
summons, failed to appear and the defendant No.4 though appeared,
failed to file his written statement, vide order dated 13.9.2022, the suit
was directed to proceed ex-parte against dependant No. 1, 2 & 3 and
without written statement of defendant No.4. The suit accordingly
proceeded and heard.
10. The plaintiff in support of his claim adduced his oral evidence
vide affidavit of examination in-chief Ex.3. He also produced on record
several documents in support of his claim, enlisted in compilation of
document Ex.4. The said document evidence is marked as Ex. 5 to 19.
The defendants did not cross examine the plaintiff nor challenged the
evidence adduced by the plaintiff.
11. In view of the above, the following points would fall for my
consideration and I have recorded my findings thereon for the reasons
to follow-
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Sr.No. Points Findings
1. Does plaintiff prove that he had given the
suit premises on leave and licence basis to
the defendants on the terms and
conditions as claimed?
Yes
2. Does plaintiff further prove that the
defendants while vacating the suit
premises caused damage to it as claimed ?
Partly proved
3. Is plaintiff entitled for a decree as sought
for?
Entitled for a
part claim of
Rs.1,00,000/-
4. What order and decree? As per final
order
R E A S O N S
12. Point No. 1 to 4 : Heard Mr. Tripathi, the ld. counsel appearing
for the plaintiff. He would make submission that since the oral and
documentary evidence adduced by the plaintiff remained unchallenged,
the same deserves to be accepted. Thus according to Mr. Tripathi, the
plaintiff has proved the claim in suit against the defendants and the suit
therefore deserves to be decreed as sought for. No one appeared for the
defendants to make submission to disprove the claim of the plaintiff.
13. From the perusal of document Ex.6, defendant No.1 Company’s
Master Data available on the website of Ministry of Corporate Affairs, it
would prima facie appear that the defendant No. 2 & 3 were the
Directors (from 27.03.2015 and 01.12.2016 respectively) of the
defendant No.1 Company, whose registered address is the same as that
of the suit premises. From the perusal of the Leave and Licence
Agreement Ex.7 (in short ‘LLA’), it is seen that it was brought into
existence on 15.6.2015 by and between the plaintiff (as a licensor) and
defendant No.1 Company (as a licensee) through its Director, the
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defendant No.2 Dr. Ramchandran Mahalingam, in respect of the suit
premises. The said LLA was for a period of 30 months commencing
from 1st May 2015 and ending on 31st October 2017; the monthly
licence fee for the initial six months was fixed @ Rs. 60,000/-,
thereafter, Rs.66,000/- for the period from 1st November 2015 to 31st
October 2016 and Rs. 72600/- for the remaining period from 1st
November 2016 to 31st October 2017. Clause 3 of the said LLA
stipulates that if the monthly compensation (licence fee) is not paid
before the due date (on or before 10th day of the calendar month in
respect of which it is payable), the licensee i.e. the defendant No.1
Company shall be liable to pay interest @ 24% per annum on such
outstanding amount. The clause 4 of the LLA stipulates that no security
deposit shall be taken by the Licensor i.e. the plaintiff from the
Licensee.
14. From the perusal of the plaint averments and the evidence oral
and documentary adduced by the plaintiff, it is apparent the plaintiff is
seeking recovery of sum of Rs.7,69,325/- which he allegedly incurred as
expenses of repairs and restoration of the suit premises after obtaining
its possession from the defendants on or about 31.10.2018. The invoice
Exh.11 would show the particulars of such expenses of repairs and
restoration of the said premises, undertaken by Eastland Interiors &
Contractors. The said invoice Exh.11 would demonstrate particulars of
the costs of/for following description namely;
1) Aluminium work
2) M.S. Staircase with railing and antiskit steps
3) Arm strong false ceiling
4) Electrical work
5) Wiring and labour
6) Painting and
7) Mazzanine vinlyl flooring.
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The total expenses of said work is quantified as Rs.7,69,325/-. In this
context if the colour photogrpahs Exh.10 are seen, it would prima facie
appear that the electrical boards, equipments are removed (missing)
from the walls/ceiling of the suit premises leaving the elctrical
wires/cables hanging. In this context if the Leave and License
Agreement Exh.7 is perused, it would appear from the clause 23 that
the licensee i.e. defendant Nos.1 to 3 on the expiry of the license shall
ensure to remove themselves and their articles and belongings from the
suit premises and shall forthwith, handover to the licensor i.e. the
plaintiff herein, vacant charge for the licensed premises in good and
satisfactory condition. From the said photographs Exh.10, it cannot be
said that defendant Nos.1 to 3, the licensee delivered vacant possession
of the suit premises to the plaintiff in the good and satisfactory
condition. Hence, to that extent the said defendant Nos.1 to 3
(Company and its Directors) will have to be held responsible and liable
to pay damages/compensation to the plaintiff.
15. From the perusal of the said invoice Exh.11 and the photographs
Exh.10, it cannot be held that any of the defendants caused damage to
the aluminium work, M.S. Staircase with railing and antiskit steps, arm
strong false ceiling, mazzanine vinlyl flooring, so that same were
required to be repaired, restored by the plaintiff. It is probable that due
to passage of time, the said items/works became repairable or liable to
be substituted and the plaintiff got it set right. From the available
material on record, it is probable and proper to hold that the defendants
(1 to 3) caused damage to the electrical work as stated and described in
the said invoice Exh.11 in clause 4A- Fixing of MCB, elcb, switch,
socket, main distribution box for which the expenses are shown as
Rs.85,000/-. It is probable that for the restoration of said electrical
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work, the plaintiff was required to pay the labour charges. In the said
invoice Exh.11 at clause (5), wiring and labour charges are stated to be
Rs.1,45,000/-. Considering the nature of the electrical work, which was
required to be repaired/restored and the costs of the same which is
indicated in the said invoice in clause (4A) as Rs.85,000/-, I deem it just
and proper to hold that Rs.15,000/- would be the reasonable amount of
labour charges for execution of the said electrical work as stated in
clause (4A) of the said invoice Exh.11. For the other works executed as
stated in the said invoice Exh.11 cannot be regarded as such which
were required to be executed due to the wrongful acts or deeds of the
defendants. Hence, the defendants cannot be held liable to re-imburse
or make payment for such works, save and except Rs.85,000/- on
account of electrical works stipulated in clause 4A and Rs.15,000/-
towards labour charges, of the Invoice Exh.11.
16. Since, from the plaint averments and the evidence oral and
documentary tendered by the plaintiff and particularly LLA Exh.7, it is
obvious that defendant No.1 Company is the licensee of the suit
premises. From the material on record, it is also established that
defendant Nos.2 and 3 were the directors of the defendant No.1
Company at the relevant time. There is, however, no legally acceptable
evidence to indicate that defendant No.4 was in any way concerned
with the management and day-to-day affairs of the defendant No.1
company. I would therefore, find no reliable material to hold defendant
No.4 liable or answerable to the plaintiff in respect of any wrongful acts
or deed of the defendant No.1 Company causing any loss or damage to
the plaintiff. Hence, the suit is liable to be dismissed against defendant
No.4.
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17. In view of my above discussion and observations, I find that the
plaintiff is entitled to recover a sum of Rs.1 lakh jointly or severally
from the defendant Nos.1 to 3 with pendent lite and future interest
thereon at the rate of 12% per annum from the date of filing of the suit
till its realisation. I accordingly record my findings on point No.1 in
affirmative, point Nos.2 as partly proved and 3 as partly proved to the
extent of Rs.1 lakh. The suit is therefore, deserves to be partly decreed
with proportionate costs against defendant Nos.1 to 3 and dismissed
against defendant No.4. In the result, I proceed to pass following order;
ORDER
1. The suit stands partly decreed against defendant Nos.1 to 3 with
proportionate costs.
2. The defendant Nos.1 to 3 shall jointly or severally pay the
plaintiff a sum of Rs.1,00,000/- (rupees one lakh only) as
compensation alongwith pendent lite and future interest at the
rate of 12% p.a. on the said amount till its realization.
3. The suit stands dismissed against defendant No.4.
4. Decree be drawn up accordingly.
Date : 24/11/2023
(V. M. Pathade)
Direct Dictated on : 24.11.2023. Judge, C.R.No.62,
checked on : 02.12.2023. City Civil Court,
Signed on : 05.12.2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.12.2023 at 11.05 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. V.M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 24/11/2023
Order signed by P.O. on 05/12/2023
Order uploaded on 06/12/2023
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