Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1552/2019 ..1.. Suit No.7421/1980
CNR No.MHCC010041262019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1552 OF 2019
IN
SUIT NO.7421 OF 1980
(High Court Suit No.503 of 1980)
Shree Krishna Woolen Mills P. Ltd. .. Plaintiffs
Versus
Mahadev Pandurang Kambekar (since deceased) .. Ori. Defendant
And
Smt. Bhimabai Mahadev Kambekar
Narendra Mahadev Kambekar and others .. Defendants
Ms. Zara, advocate for plaintiffs
Mr. Yatin R. Shah, advocate for defendant No.1(a)
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 23rd October, 2019
ORAL ORDER
Notice of motion is taken out by defendant No.1(a) for rejection
of plaint for want of jurisdiction.
2. It is contention of defendant No.1(a) that plaintiffs have filed
suit for specific performance pursuant to a Deed of Lease; more
specifically, to exercise option to purchase granted in clause 7 of said
lease deed. Plaintiffs are lessees of the property and original defendant
was lessor.
3. It is further contended that in a similar matter of Bombay
Forging Limited Vs. M/s. Manilal & Sons, the Hon'ble High Court on an
exactly similar case of exercising of option by the lessee and in the suit
-- 1 of 9 --
NM No.1552/2019 ..2.. Suit No.7421/1980
for specific performance by a lessee against the lessor held that Civil
Court has no jurisdiction and Small Causes Court has exclusive
jurisdiction and jurisdiction of Civil Court was barred and consequently,
rejected the plaint under Order VII Rule 11 (d) of the Civil Procedure
Code vide order dated 26.06.2015. Appeal bearing No.579 of 2015
filed against the said order before Hon'ble Division Bench also came to
be dismissed as per order dated 22.03.2016 holding that jurisdiction
was only with Small Causes Court. SLP bearing No.17158 of 2016 filed
before Hon'ble Supreme Court of India against the order of Hon'ble
Division Bench of High Court also came to be dismissed as per order
dated 13.04.2017.
4. Relying upon aforesaid authorities; defendant No.1(a) further
contended that in present matter relationship is claimed to be of lessor
and lessee. There is an exercise of option to purchase and the claim for
specific performance as per Lease and therefore, this Court has no
jurisdiction to entertain or dispose off the suit. Accordingly, defendant
prayed for rejection of plaint for want of jurisdiction as per provisions of
Order VII Rule 11(d) of CPC, 1908.
5. Plaintiffs filed affidavit in reply to the notice of motion and
contended that suit property was let out to plaintiffs vide Indenture of
Lease dated 20th June, 1958 (Lease Deed) executed between original
defendant and plaintiffs. Said lease was for a period of 99 years at a
monthly rent of Rs.410/. As per clause 7 of said lease deed; plaintiffs
exercised its option to purchase 14,912 square yards of land vide its
letter dated 03.02.1978 and called upon original defendant to make out
a marketable title and execute a deed of conveyance. But original
defendant sought to evade his duties under the lease deed by falsely
accusing plaintiffs of encroaching upon excess land amounting to 6666
square yards. Therefore, plaintiffs have filed above suit for specific
-- 2 of 9 --
NM No.1552/2019 ..3.. Suit No.7421/1980
performance of the Contract. Original defendant filed counter claim in
the said suit for a decree of possession, injunction and appointment of
court receiver. Hon'ble Single Bench of High Court by its order dated
24.12.1998 decreed the suit in terms of prayer clauses (a) and (b) and
original defendant was directed to execute deed of conveyance in
favour of plaintiffs. Thereafter, two cross appeals were filed by plaintiffs
as well as defendants bearing Nos.199 of 1999 and 169 of 1999
respectively. Both appeals came to be disposed of by Hon'ble Division
Bench of High Court vide order dated 19.07.2007 and remanded back
the suit filed by plaintiffs for retrial to Hon'ble Single Judge and
rejected the counter claim filed by original defendant. Against said
order; original defendant filed Civil Appeal No.57535754 of 2011
before Hon'ble Supreme Court of India which also came to be disposed
off vide order dated 31.01.2019 and upheld the findings in the order
dated 19.07.2007 that Defendant's counter claim for a decree for
possession was not maintainable. It is further contended that judgment
on which defendant No.1(a) has placed reliance to seek rejection of the
plaint is wholly irrelevant and inapplicable to the present proceedings.
Accordingly, plaintiffs prayed for dismissal of notice of motion.
6. Defendant No.1(a) filed rejoinder and contended that plaintiffs
are illegally and unlawfully occupying the property belonging to the
defendants and enjoying the same without paying anything to the
defendants. Plaintiffs had taken the lease for setting up a factory and
were manufacturing woolen blankets but since 1985 they have stopped
all business and terminated the same. Plaintiffs have turned the entire
property of defendants into Cargo terminal and are letting out the
property to various corporate entities and making crores of rupees by
recovering license fees without paying a single rupee to defendant. The
extract of Index No.2 of the suit property shows that plaintiffs are
exploiting property of defendants without paying anything. Defendant
-- 3 of 9 --
NM No.1552/2019 ..4.. Suit No.7421/1980
No.1(a) denied the contention of plaintiffs as mentioned in reply and
prayed to allow notice of motion.
7. Plaintiffs filed surrejonder and reiterated the facts mentioned in
reply. They have denied the allegations of defendant and prayed for
dismissal of notice of motion.
8. Perused notice of motion, affidavit in support of it, reply of
plaintiffs, rejoinder of defendant No.1(a), surrejoinder of plaintiffs,
pleadings of parties and documents filed on record. Heard respective
counsel for parties. They advanced their arguments in accordance with
respective contention of parties.
9. At the outset it is not in dispute that plaintiffs have filed suit for
specific performance in pursuance to clause 7 of Indenture of Lease
dated 20th June, 1958 seeking relief to direct defendants to make out
marketable title to the property agreed to be sold to them i.e. demised
land admeasuring 14,912 square yard situated at Bombay Agra Road at
NahurBhandup, Bombay78 bearing survey No.58(part) and survey
No.60 and further seeking direction against the defendant to execute
deed of conveyance in respect thereof in their favour. It is also not in
dispute that plaintiffs have filed suit before Hon'ble High Court bearing
No.503 of 1980 and said suit was decreed in favour of plaintiffs and
counter claim filed by defendants seeking decree of possession was also
decreed. Therefore, both plaintiffs and defendants have challenged said
judgment and decree by filing two appeals i.e. Appeal Nos.169 of 1999
and 199 of 1999. Both appeals have been decided by Hon'ble Division
Bench of High Court vide judgment and order dated 19th July, 2007 and
counter claim filed by the defendant was rejected and suit filed by the
plaintiffs was remanded back for further trial and decision in
accordance with law and in light of observations made in the said order.
-- 4 of 9 --
NM No.1552/2019 ..5.. Suit No.7421/1980
It is also not in dispute that plaintiffs are in possession of the demised
land since execution of indenture of lease. It seems that neither original
defendant nor these defendants have raised issue of jurisdiction of this
Court to try and entertain suit in earlier round of litigation. Now, for
the first time these defendants have raised issue of jurisdiction of this
Court to entertain and try the suit in view of Section 41 of the
Presidency Small Causes Courts Act, 1882.
10. I have carefully gone through the averments in plaint. As earlier
pointed out suit is filed seeking specific performance of clause 7 of
indenture of lease dated 20th June, 1958. It is apt here to mention
clause 7 of the indenture of lease which read as under :
“It is hereby agreed between the Lessor and the Lessees that at any
time within 20 years from the date of this lease the Lessees can
elect to purchase the entire demised premises from the Lessor for a
consideration of Rs.82016/ which amount represents the present
market value of the land and if and when the Lessees so elect and
intimate to the Lessor in writing about their intention to purchase
the same the Lessor shall within 4 months from the date of such
intimation make out a marketable title of the said land to himself
and execute a proper deed of conveyance in favour of the Lessees
against the payment of the aforesaid amount free from
encumbrances and liabilities whatsoever. In the event of such
conveyance being executed the costs of and all incidental expenses
to the execution thereof shall be borne by parties in equal moiety
except the costs of their respective legal adviser”.
11. On reading said clause it is clear that right has been given to
lessee to exercise option within period of 20 years from the date of lease
to purchase entire demised premises. Plaintiffs have claimed that they
expressed their readiness and willingness to purchase demised land
within prescribed time. Original defendant has not disputed aforesaid
clause of the indenture of lease. Only dispute raised by defendant is that
plaintiffs are in possession of excess area of land than that leaseout to
them. In present suit plaintiffs have not claimed possession of demised
land. They are already in possession of demised land. In view of above
-- 5 of 9 --
NM No.1552/2019 ..6.. Suit No.7421/1980
background, it is to be seen whether present suit is barred under section
41 of the Presidency Small Causes Courts Act, 1882. Shri Yatin Shah,
learned advocate for the defendants placed reliance upon authorities in
the cases of Bombay Forging Limited Vs Messer’s Manilal & Sons,
Appeal (L) No.579 of 2015 decided by Hon'ble High Court on 22nd
and 23rd March, 2016 and ING Vysya Bank Limited Vs. Modern India
Limited and Another, 2008(2) Bom.C.R. 255, in support of his
submission that this Court has no jurisdiction to entertain and try
present suit.
On the other hand, learned advocate for plaintiffs vehemently
argued that cited authorities are not applicable to the facts of present
case as in present case plaintiffs are already in possession of demised
land and they have not filed suit for recovery of possession of demised
land. She placed reliance upon Section 19 of the Presidency Small
Causes Courts Act which bars jurisdiction of Small Causes Court in
relation to suit for specific performance or rescission of contracts.
Accordingly, she submitted that notice of motion be dismissed.
12. In the case of Bombay Forging Limited (cited supra) suit was
filed seeking direction against defendant for specific performance of its
obligation under the lease by renewing it and by executing necessary
documents being a fresh lease or any writing to that effect. Considering
said prayer it is held that prayer made is for seeking continuation of
relationship between plaintiff and defendant as tenant and landlord on
the basis of option provided in the indenture of lease and upheld the
order passed by Hon'ble Single Judge of the High Court whereby plaint
was rejected. In present case suit is not filed for seeking specific
performance for renewal of lease. Suit is filed only for specific
performance seeking direction against the defendant to execute
conveyance of the demised land. Thus, prayer made is not for
recognition for continuation of relationship between plaintiff and
-- 6 of 9 --
NM No.1552/2019 ..7.. Suit No.7421/1980
defendant as tenant and landlord. More so, present suit is not for
seeking possession of the demised land. So, in the facts of matter
authority cited supra is not of assistance to the defendant.
13. In the case of ING Vysya Bank Limited (cited supra) it is held
that “Section 41 of the Presidency Small Causes Courts Act, 1882 is prefaced
with non obstante provision as a result of which the provisions of sub section (1)
are given overriding force and effect notwithstanding anything contained
elsewhere in the Act nonetheless, however, subject to sub section (2).” There is
no dispute about the ratio laid down in the said authority. In the said
case the principal issue which has arisen for determination was,
whether the provisions of section 41 of the said Act would bar the
jurisdiction of Arbitral Tribunal who entertain a claim for specific
performance of an agreement of renewal contained in an agreement of
licence executed between licensor and licensee. Thus, it is clear that in
the said matter renewal of agreement was sought. In the present case
plaintiffs have not sought renewal of agreement of lease. They only
sought specific performance of clause – 7 of the agreement seeking
prayer to direct defendants to execute conveyance deed. It is not for
recovery of possession of demised premises. In the facts of present
matter aforesaid authority is not of help to the defendants.
14. It is useful here to mention provisions of section 41 (1) of the
said Act : Notwithstanding anything contained elsewhere in this Act but
subject to the provisions of subsection(2), the Court of Small Causes
shall have jurisdiction to entertain and try all suits and proceedings
between a licensor and licensee, or a landlord and tenant, relating to
the recovery of possession of any immovable property situated in
Greater Bombay, or relating to the recovery of the licence fee or charges
or rent therefor, irrespective of the value of the subjectmatter of such
suits or proceedings.
-- 7 of 9 --
NM No.1552/2019 ..8.. Suit No.7421/1980
15. As already pointed out present suit is for specific performance of
contract seeking relief of giving direction to defendants to execute
conveyance deed of demised land. It does not relate to recovery of
possession. More so, suit is not for extension of relationship of lessor
and lessee. Further, it is not for renewal of lease. It cannot be said that
obligation under clause 7 of Indenture of Lease has arisen because of
existence of relationship of lessor and lessee between original defendant
and plaintiffs. Therefore, suit does not fall within the ambit of section
41(1) of the Presidency Small Causes Courts Act, 1882. Section 41 (1)
of the said Act is not applicable to present suit. That being so, Section
19 (h) of the said Act has to be invoked which bars jurisdiction of Small
Causes Court in relation to suit for specific performance or rescission of
contract. In the light of discussion made above I hold that this court has
jurisdiction to entertain and try the present suit so present notice of
motion deserves to be dismissed. Hence, pass following order.
ORDER
Notice of Motion No.1552 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 23.10.2019 Gr. Bombay
Typed on : 23.10.2019
HHJ signed on :
-- 8 of 9 --
NM No.1552/2019 ..9.. Suit No.7421/1980
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.10.2019, 3.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
23.10.2019
JUDGMENT/ORDER signed by P.O.
on
24.10.2019
JUDGMENT/ORDER uploaded on 24.10.2019
-- 9 of 9 --