Interim Order 1

Order Details: Other
Pdf Text: Dt. 11.05.2021
SU – 934/21
CORAM : H.H.J SHRI.C. V. MARATHE (C.R.NO.4)
Adv. Jha/ Prakash Dhopatkar for plaintiff present.
Adv. Mr. Yash along with Adv. Ms. Geetanjali Joshi for
defendants present
ORDER ON DRAFT N/M filed by Defendants :
ORDER
The defendants have prayed for return / rejection of plaint
vide the instant N/M. The plaintiff, licensee of the suit flat, has
made following prayers against the defendants no.1 and 2, the
licensors, following prayers :
a. that this Honourable Court be pleased to declare that the
monthly license fee payable by the plaintiff in respect of the suit
premises viz. Flat No.103 consisting of three BHK, admeasuring
approximately 2880 sq. ft. (builtup) area on the 10 th floor, 'B'
wing of the building NCPA Apartment situated at in Apsara Co
operative Housing Society Ltd., Nariman Point, Mumbai 400 021
reduce from Rs.3,00,000/ to Rs.1,50,000/, by the plaintiff to the
defendants be payable Rs.1,50,000/ (Rupees One lac fifty
thousand only) per month for the period from 1st January 2021 till
the completion of the repair/renovation works in the building/s in
Apsara Cooperative Housing Society Ltd. NCPA Apartment
situated at Nariman Point, Mumbai 400 021;
b. that this Honourable Court be pleased to issue permanent order
of injunction restraining the Defendants by themselves, their
servants, agents and assigns from depositing the postdated cheques
issued by the plaintiff towards payment of license fee for the suit
premises viz. Flat No.103 consisting of three BHK, admeasuring
approximately 2880 sq. ft. (builtup) area on the 10 th floor, 'B'
wing of the building NCPA Apartment situated at in Apsara Co
operative Housing Society Ltd., Nariman Point, Mumbai 400 021
along with two dedicated car parking spaces bearing Nos. 121 on
the basement and 197 on the ground floor in the said building
NCPA Apartment;
c. that this Honourable Court be pleased to declare that the
defendants have played a fraud and mischief on the plaintiff and
issue a permanent injunction against the defendants, their
servants, agents and assigns from in any manner dispossessing the
plaintiff and her family including the said three golden retrieved
pets from the suit premises by terminating the said Leave and
License Agreement dated 02.03.2020 entered into between the
plaintiff and the defendants (Exhibit 'A' hereto);
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After going through the plaint allegations, it is apparent that
due to commencement of major repair works in the suit building,
the plaintiff suffered huge inconvenience as the window of the
suit flat were covered by baize clock. It is alleged in the plaint
that the aspect of proposed major repairs in the building was
suppressed by the defendants from the plaintiff while executing
Leave and License agreement dated 02.03.2020 and therefore,
the declaration is sought that the plaintiff is entitled to pay
Rs.1,50,000/ as monthly license fee till completion of repair
though agreed monthly license fee was Rs.3,00,000/. An
injunction is also sought against termination of leave and license
agreement and dispossessing the plaintiff and her family from
the suit flat.
According to the ld. Advocate for the defendants, the
jurisdiction of Civil Court is barred under Section 41(1) of the
Presidency Small Causes Court Act, 1882, which reads as under :
(1) Notwithstanding anything contained elsewhere in this act
but subject to the provisions of Sub Section (2), the court of
Small Cause shall have jurisdiction to entertain and try all suits
and proceedings between a licensor and licensee, or a landlord
or tenant, relating to the recovery of possession of any
immovable property situated in Greater Bombay, or relating to
the recovery of any license fee or charges or rent therefor,
irrespective of the value of the subject matter of such suits or
proceedings.
In the case of Mansukhlal Dhanraj Jain and Ors. Vs.
Eknath Vithal Ogale [1995(2) SCC 665], the Honourable Apex
Court has discussed definition of “relate in paragraph 14 to
mean” to stand in some relation; to have bearing or concern ; to
pertain; refer; to bring into association with or connection with;
with to;”
In concluding paragraph no.24, the Honourable Apex Court
has ruled “the suits are clearly based on allegation that the
plaintiffs are licensees on monetary consideration and they
apprehend to be dispossessed, not in accordance with law, at the
hands of the defendant licensor. Such suits as we have discussed
earlier, clearly attract the applicability of Section 41 of Small
Cause Court Act, 1882 as both the conditions for its applicability,
namely, that they are suits between licensees and licensors and
they relate to recovery of possession of immovable properties in
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Greater Bombay are complied with. Consequently, the
conclusion of inevitable that the aforesaid suits were not
cognizable by City Civil Court, Bombay and they could be
entertained by Small Cause Court, Bombay.
In the instant matter, ld. Advocate for the plaintiff submits
that the defendants have played fraud upon the plaintiff by
fixing a locking period of 3 years in the agreement dated
02.03.2020 and suppressed material aspect of major repairs in
the suit building and therefore, the Civil Court only has
jurisdiction to deal with allegations of fraud. However, there is
no prayer to declare the agreement void. The Court has to
determine whether the suit in substance and in essence is a suit
relating to recovery of possession or relating to recovery of
license fee. This issue will have to be decided by looking at the
existence of jural relationship, the nature of cause of action, the
character of reliefs sought and whether the claim of the plaintiff
arises from and out of the obligation of the parties as licensors
and licensees. In the instant case, the prayers of reduction in
license fee and permanent injunction from dispossession of the
licensees are clearly relating to recovery of license fee and
recovery of possession respectively. Therefore, the Court of Small
Causes, Mumbai has jurisdiction to entertain the suit as filed by
the plaintiff. Therefore, the plaint is liable to be returned. Hence,
following order
ORDER
1. The plaint be returned to the plaintiff for presenting to the
Court of Small Causes, Mumbai, in which the suit should have
been instituted.
2. Notice of Motion to be registered for a statistical purpose.
Authenticated copy be given to both the parties.
Judge
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