Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1251 OF 2020
(CNR NO.MHCC010035232020)
IN
S. C. SUIT NO.1270 OF 2020
Agnelo Francis Patrao & Anr. )..Applicants
In the matter between
Ravi Rajan Pandayan )..Plaintiff
V/s.
Agnelo Francis Patrao & Anr. )..Defendants
Appearances :
Ld. Adv. Deepak Kushwaha for plaintiff.
Ld. Adv. Rakesh Agrawal for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 09/03/2023.
ORDER
1 This notice of motion is taken out by defendants for
rejection of plaint contending that it is a suit between licenser and
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licensee by virtue of agreement dated 01/09/2014, therefore, as per the
provisions of Section 41 of Presidency Small Cause Courts Act, 1882, this
Court has no jurisdiction to try and entertain the present suit, further
contended that the plaintiff has not valued the suit property and filed
undervalued suit. Lastly, prayed for rejection of plaint.
2 The plaintiff resisted the contentions by filing reply,
contending that the suit is properly valued. He further contended that
the provisions of Section 41 of Presidency Small Cause Courts Act, 1882,
does not create a bar, the provision of said Act is regarding the recovery
of leased property or recovery of license fee or charges or rent. He also
contended that the suit is maintainable before this Court and prayed for
rejection of notice of motion.
3 Heard both the parties at length. On perusal of the plaint, it
reveals that the plaintiff is claiming that defendants are owner of suit
shop, and he was allowed to use and occupy the said shop under valid
leave and license agreement. He paid an amount of Rs.6,00,000/ as
security deposit. It is his contention that the defendant No.1 has
terminated his leave and license agreement without authority. He
pleaded the details of the amount paid to the defendants towards
security deposit and the expenses incurred by him totaling to
Rs.20,00,000/. It is his contention that defendant No.2(a) threatened
him to vacate the shop. Thus, he is claiming himself as valid tenant and
denying the termination of his leave and license agreement. The plaintiff
sought relief that leave and license agreement is valid and termination
claimed is invalid. He further sought direction against defendants to
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perform their obligation under the leave and license agreement, thereby
claiming himself as protected tenant.
4 It clearly reveals from the averments of plaint that it is a
suit between licenser and licensee based on the agreement of leave and
license. The plaintiff is claiming relief in respect of license agreement
and its performance, therefore, the suit is clearly triable before the Ld.
Small Causes Court under the provision of Presidency Small Cause
Courts Act, 1882. During the argument, the Ld. Counsel for plaintiff
prayed that the plaint be returned to him for presentation before the Ld.
Small Causes Court. He is relying on two judgments passed by the
Hon'ble Bombay High Court, in case of Rajani Ramchandra Shinde &
Anr. Vs. Moreshwar Vasant Chavan reported in 2019(1) BCR 922 :
2019(4) ALL MR 157 and in case of Sureshkumar S/o Rochiram
Jagyasi Vs. Maharashtra State Electricity Distribution Company Ltd.
Nagpur reported in 2015(2) ALL MR 748 : 2014(17) R. C. R. (Civil)
499 : 2014(4) Mh. LJ 947 : 2014(5) AIR Bom.R 763.
5 The Ld. Counsel for defendants resisted the contention,
contending that it is a suit where this Court has no jurisdiction for want
of subject matter, therefore, the Court has only option to reject the
plaint. He is relying on the judgment passed by the Hon'ble High
Court in case of Lt. Col. Anil Bhat V/s. Citi Bank, Mumbai reported in
A.I.R 2009 Bombay 99. In this case, the proceedings filed before the
Debts Recovery Tribunal were without jurisdiction and therefore, it
directed to return the plaint for presentation before proper Court.
Hence, the said order of Debts Recovery Tribunal was challenged and
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the objection was raised whether, after Tribunal came to the conclusion
that it had no jurisdiction over the subject matter, could it then pass
consequential order of rejection of plaint by exercising powers of Civil
Court under the Code of Civil Procedure. There is no specific power of
rejection of plaint under the provisions of Recovery of Debts Due to
Banks and Financial Institutions Act, 1993, wherein Section 22(1) of
the Act, provides that the Tribunal shall not be bound by the procedure
laid down by Code of Civil Procedure. Section 22 of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993 lays down the
procedural powers of the Tribunal and it says that it is not bound by the
procedure laid down by the Code of Civil Procedure. It was questioned
that when the Court has no jurisdiction over the subject matter, then it
has no jurisdiction to pass further orders. It is held that the Tribunal
would have no jurisdiction to direct the return of the plaint after it
came to the conclusion that it had no jurisdiction over the subject
matter.
6 The case of Lt. Col. Anil Bhat cited supra has come before
the Hon’ble Bombay High Court for consideration in case of Chandra
Prem Shah & Ors. Vs. K. Raheja Universal Pvt. Ltd & Anr. reported in
2015 AIR BOMR 5 821, the Court of City Civil decided preliminary
issue of jurisdiction against the plaintiffs and ordered that the plaint be
returned to the plaintiffs for presentation before appropriate Court. In
this case, a relief was sought against the Cooperative Society which
was added subsequently and therefore, objection was raised before the
Trial Court that it is an issue between a Cooperative Society and the
Member of the said society and therefore, the Civil Court has no
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jurisdiction to decide the dispute between the Society and its members.
When matter came before the Hon’ble Bombay High Court, while
deciding the issue whether the order of return of the plaint is correct
and legal, the Hon’ble Ladyship has considered the facts and
observation made in Lt. Col. Anil Bhat cited supra and also examined
the effect of provisions of Order VII Rule 10 and under Order VII Rule
11 of Code of Civil Procedure. The judgment of the Full Bench of the
Hon’ble Bombay High Court in case of Prabhakar Bhat Vs.
Vishwambhar Pandit, reported in I.L.R 1884 came to be followed and
held that the order of return of the plaint passed by the Ld. Trial Judge
was correct and legal.
7 The facts of case in hand are similar to the cases of Lt. Col.
Anil Bhat and Chandra Prem Shah & Ors. cited supra, Thus, following
the observation of the Hon’ble Bombay High Court in case of Chandra
Prem Shah & Ors., I am of the view that in the present case also the
plaint deserves to be returned to the plaintiff under Order VII Rule 10 of
Code of Civil Procedure. Hence, considering the above discussion, I
proceed to pass the following Order :
O R D E R
1 Notice of Motion No.1251/2020 in S.C. Suit
No.1270/2020, is disposed off as follows :
2 Plaint in S. C. Suit No.1270/2020 stands
returned to the plaintiff for its presentation
before appropriate Court.
3 Pending Notice of Motion No.1239/2020
stands disposed off in terms of return of plaint.
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4 Notice of motion Nos.1251/2020, 1239/2020
and S. C. Suit No.1270/2020 are disposed off
accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 09/03/2023 C.R. No.03, Gr. Mumbai
Dictated on : 06/03/2023, 09/03/2023
Transcribed on : 08/03/2023, 09/03/2023
Signed on :
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“Certified to be true and correct copy of the original signed order”.
09/03/2023
at about 5.27 p.m.
(Ms. Sonali Sudhir Sawant)
Stenographer (GradeIII.)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 09/03/2023
Order signed by Hon'ble Judge on : 09/03/2023
Order uploaded on : 09/03/2023
at about 5.27 p.m.
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