Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1956-2019 in SU 733-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1956 OF 2019
(CNR No.MHCC01-006631-2017)
IN
SUIT NO.733 OF 2019.
(CNR No.MHCC01-004709-2017)
Tanaji Ramchandra Patil }...PLAINTIFF.
Versus
Rasiklal Mehta and anr. }...DEFENDANTS.
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Shri.Lanke, learned advocate for the plaintiff.
Shri.Sharma, learned advocate for the defendants.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 11.11.2021)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
as under;
a) Pending hearing and final disposal of the suit this Hon’ble
Court may be pleased to pass appropriate orders appointing
Court Receiver of High Court, Bombay under Order 40, Rule 1 of
Civil Procedure Code, 1908 as amended, with directions to the
Court Receiver to take possession of the suit property in respect
of the suit premises viz.,2 Industrial Galas Nos.302, 303 situated
on 3rd floor, situated at Cama Industrial Estate, S.J. Marg, Lower
Parel, Mumbai-400 013 and display the board of Court Receiver,
High Court Bombay at the suit property and plaintiff may be
appointed as Agent of the Court Receiver;
b) Pending hearing and final disposal of the suit, the defendants,
their agent, servant, person and/or any other persons claiming
through them be restrained by order and injunction of this
Hon’ble Court from creating third party rights of any nature in
respect of suit property viz., 2 Industrial Galas Nos.302, 303
situated on 3rd floor, situated at Cama Industrial Estate, S.J.
Marg, Lower Parel, Mumbai-400 013 to the third party;
c) Pending hearing and final disposal of the suit the defendants,
their agent, servant, person and/or persons who is in possession
of the suit property be ordered and directed to restore possession
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of the suit property viz, 2 Industrial Galas Nos.302, 303 situated
on 3rd floor, situated at Cama Industrial Estate, S.J. Marg, Lower
Parel, Mumbai-400 013, forthwith to the plaintiff.
2. Read the affidavits filed in support of their respective
contentions by both the parties. Heard learned Shri.Lanke advocate for
the plaintiff and learned Shri.Sharma advocate for the defendants.
Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff? ...No.
ii) Whether balance of convenience lies in his
favour? ...No.
iii) Whether irreparable loss will cause to the
plaintiff if interim injunction as claimed is not
granted? ...No.
iv) Is it necessary to appoint Court Receiver? ...No.
v) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iv):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that landlady has given the suit
premises to the plaintiff on leave and license basis for conducting
business and plaintiff is conducting his business in the suit premises
since year 2010. He argued that landlady expired on 25/02/2018
leaving behind her the defendant No.1 as her husband and defendant
No.2 as her son. He argued that landlady had executed registered leave
and license agreement on 25/09/2014 in favour of the plaintiff in
respect of the suit premises for a period of 24 months from 01/09/2014
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to 31/08/2016 and plaintiff was paying license fees @ Rs.30,000/- per
month including additional amount @Rs.24,000/- per month, in
installment, to the landlady as she had agreed to sell the suit property
to the plaintiff for a total consideration of Rs.1 Crore. He argued that
plaintiff has paid Rs.39 Lakh in total to the landlady from time to time
and the landlady has executed bill of exchange to that effect in favour
of the plaintiff on 01/06/2016 thereby agreeing to sell the suit property
to the plaintiff. He argued that plaintiff has paid rent till 31/08/2016 by
way of cheques to the landlady but after her death, defendants have
issued notice dt.12/07/2018 to the plaintiff stating therein that the
tenancy of the plaintiff has been terminated. He argued that plaintiff
had brought to the notice of the defendants by sending a reply to the
said notice that landlady has agreed to sell the suit property to the
plaintiff for Rs.1 Crore and plaintiff has already paid Rs.39 Lakh
towards part payment to the landlady. He argued that landlady had
permitted the plaintiff continue his business in the suit property till
entire sale consideration amount is paid by the plaintiff but the
defendants started threatening the plaintiff to illegally evict him from
the suit property. He argued that plaintiff had suffered a severe heart
attack for which, plaintiff was admitted in hospital on 22/11/2018 and
taking disadvantage of it, defendants have taken forcible possession of
the suit property with the help of Goons and they have put a lock on the
suit property by removing the name board of the plaintiff in respect of
which, person Shankar Pagire working with the plaintiff has lodged
report with police on 23/11/2018 and police has registered a crime in
respect of the said incident. He argued that plaintiff has filed
application u/s.145(1) and 146(1) Cr.P.C. before learned Metropolitan
Magistrate which is pending. He argued that plaintiff is ready and
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willing to perform his part of contract by paying the balance sale
consideration of Rs.61 Lakh, defendants are trying to create third party
interests in the suit property and if they succeed in doing so, it will
cause an irreparable loss to the plaintiff. He submitted that defendants
have forcibly dispossessed the plaintiff from the suit premises hence, it
is necessary to direct the defendants to restore possession of the suit
premises to the plaintiff, it is necessary to appoint a court receiver also
and hence, Notice of Motion shall be made absolute.
5. As against this, learned advocate for the defendants argued
that plaintiff has made altogether false statements in the plaint, plaintiff
has not come before the court with clean hands, plaintiff had filed suit
earlier wherein contradictory statements than the statements made in
this suit were made by the plaintiff, plaintiff has created a false story
after death of the landlady that said landlady has agreed orally to sell
the suit property to the plaintiff and there is no proof to show that
plaintiff has paid Rs.39 Lakh to the deceased landlady. He argued that
material available on record in the form of letter correspondence shows
that plaintiff was unable to pay rent from which, it is clear that the story
of payment of amount of Rs.39 Lakh by the plaintiff to the landlady is
false and concocted story. He argued that plaintiff had avered in the
earlier filed suit that he is dispossessed in October 2017 due to which,
contention of the plaintiff cannot be accepted that he has been
dispossessed on 22/11/2018. He argued that defendants are the owners
of the suit property and injunction cannot be granted against them in
favour of the plaintiff. In support of his argument, learned advocate for
the defendants has placed reliance on the following authorities.
i)
Vyankati Vs. Varsha reported in 2005(2) ALL MR 157,
ii)
N. Umapathy Vs. B.V. Muniyappa reported in
AIR 1997 SC 2467,
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iii)
Krishna Vs. Tukaram reported in
2011 (6) ALL MR 681,
iv)
Nandan Pictures Ltd. Vs. Art Pictures Ltd.
reported in
AIR 1956 Kolkatta 428,
v)
Nabekishore Vs. M/s. East India Arms Co.
reported in
AIR 1998 Orissa 95,
vi) Loreal India Pvt. Ltd. Vs. Global Earth Properties and Developers
Pvt.Ltd. reported in
2009(3) ALL MR 53.
I have gone through those authorities.
6. Contention of the plaintiff is that he has taken the suit
property on leave and license basis to conduct his own business under
the name and style as M/s.Yash Texknit under leave and license
agreement dtd.25/09/2014. Copy of said leave and license agreement
produced by the plaintiff shows that it was executed between landlady
Jyotsna Mehta and Proprietor of M/s. Yash Texknit. Plaintiff is shown in
said agreement as Proprietor of M/s.Yash Texknit and said agreement
was executed for two years from 01/09/2014 to 31/08/2016.
Apparently, the period of leave and license mentioned in the said
agreement has already expired on 31/08/2016 itself.
7. Plaintiff has contended that he has paid rent in respect of
the suit property to the landlady till 31/08/2016 but after the death of
the landlady, defendant No.1 and 2, being her legal heirs, have issued
notice dtd.12/07/2018 about termination of the tenancy of the plaintiff
in respect of the suit property. It is the contention of the plaintiff that
landlady had agreed to sell the suit property to him for a total
consideration of Rs.1 Crore out of which, he has paid Rs.39 Lakhs to the
landlady as a part payment of the total sale consideration and as per the
understanding between the plaintiff and the original landlady, plaintiff
was permitted to continue his business from the suit property till entire
sale consideration is paid by the plaintiff however, after the death of the
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landlady, defendants started giving threats to the plaintiff to dispossess
him by using criminal force.
8. It is the contention of the plaintiff that he had suffered a
heart attack for which, he was admitted in ICU from 22/11/2018
to 25/11/2018 and as such, he was not present at the business in the
suit property during those days by taking disadvantage of which,
defendants have taken forcible possession of the suit property in respect
of which, person by name Shankar Pagire working with the plaintiff
lodged FIR with the police on 23/11/2018, crime for offence under
Section 448, 34 IPC came to be registered and defendants were arrested
in the said crime. It is the further contention of the plaintiff that he has
already filed application/complaint under Section 145 (1) and 146 (1)
of Cr.P.C. in the Court of learned Metropolitan Magistrate for restoration
of possession of the suit property. Plaintiff has contended that he is
ready and willing to perform his part of contract entered into between
him and deceased landlady.
9. Contention of the plaintiff is that the landlady has executed
a bill of exchange dt.16/3/2016 in his favour about acceptance of Rs.39
Lakh towards part payment. Plaintiff has produced copy of said bill of
exchange. Its perusal nowhere shows that plaintiff has paid Rs.39 Lakh
to the landlady towards part payment for purchase of the suit property
because any such specification is not available in the said document due
to which, contention of the plaintiff cannot be accepted that said bill of
exchange is in respect of payment of Rs.39 Lakh by him to the landlady
towards part payment of the sale consideration of Rs.1 Crore in respect
of the suit property.
10. Again, plaintiff has not produced proper material to show
that he had actually paid Rs.39 Lakh mentioned in the said bill of
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exchange to the landlady. On the other hand, defendants have produced
copies of notices exchanged between the plaintiff and deceased
landlady which
prima facie show that the landlady had called upon the
plaintiff to clear the arrears of rent and the plaintiff had expressed his
inability to clear the outstanding rent amount. It does not appear from
the material available on record that plaintiff had ever raised any
contention during lifetime of the landlady that he has paid Rs.39 Lakh
to her towards part payment for purchase of the suit property under
oral agreement. Material available on record
prima facie shows that
plaintiff has started raising said contention after the death of the
landlady. Having regards to those aspects and having regards to the fact
that plaintiff has not produced proper supporting material to show that
he was having Rs.39 Lakh with him and he had paid that much amount
to the landlady as a part payment, this court is of the opinion that the
contentions raised to that effect by the plaintiff are
prima facie not
acceptable.
11. Plaintiff has placed on record copy of report lodged by
Shankar Pagire with the police on 26/11/2018 wherein, said informant
has referred himself as plaintiff's partner in the business being run from
the suit property since year 2016. Said averment in the copy of FIR is
not in consonance with the statements made by the plaintiff in the
plaint as plaintiff has referred said Shankar Pagire in the plaint to be a
person working with him and not as a partner. Furthermore, said FIR
appears to have lodged on 26/11/2018 and not on 23/11/2018 as is
contended by the plaintiff in the plaint. It would be just to consider
whether statements made by plaintiff about his alleged dispossession
from the suit property on 23/11/2018 are
prima-facie acceptable?
12. It is not in dispute that plaintiff had filed a suit earlier in
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respect of the suit property against the present defendants and said suit
is withdrawn by the plaintiff with liberty to file a fresh suit and
accordingly, this suit is filed. Defendants have produced copies of Notice
of Motion, plaint and documents of the said earlier suit. Copy of letter
dtd.27/11/2018 addressed by the plaintiff to N.M.Joshi Marg police
station is available in those documents which shows that plaintiff had
alleged therein that defendants took illegal possession of the suit
property on 16/10/2017 and lateron, owner Jyotsna Mehta gave him
permission to continue the work from the suit property which she had
not objected till her death on 25/02/2018. Plaintiff has further
mentioned in the said letter that on his returning back to the home from
the hospital on 25/11/2018, his partner Shankar Pagire informed him
that Nitesh Mehta (defendant No.2) is trying to break open the lock of
the suit property for taking possession thereof, he (plaintiff) is in the
possession of the suit property as per the oral agreement to sell entered
into between him and deceased landlady and Mr.Nitesh Mehta be
prevented from taking forcible possession of the suit property from him.
Apparently, the statements made in said letter so also, the averments of
the plaint in the earlier suit suggest that plaintiff had claimed himself to
be in possession of the suit property even after 23/11/2018 due to
which, the contention raised by the plaintiff in this suit is
prima facie
not acceptable that he has been forcefully dispossessed from the suit
property by the defendants on 23/11/2018. Plaintiff has not given any
explanation in that regard in the plaint anywhere.
13. Even otherwise also, it appears to be the own contention of
the plaintiff that leave and license agreement executed between him
and the landlady has expired on 31/08/2016. Plaintiff has produced
copy of contract award approval/confirmation and contract authorized
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certificate to show his possession over the suit property in the month of
May 2018. Even assuming that after the dispossession of the plaintiff in
October 2017, he was allowed to continue his business from the suit
property by the landlady afterwards is accepted for the time being, it
appears that the possession of the plaintiff after October 2017 was
permissive possession. As mentioned earlier, it was the own contention
of the plaintiff in the plaint in the earlier suit that he was in possession
of the suit property even after 23/11/2018 which is alleged by him to
be the date of his dispossession in the present suit. Plaintiff himself has
raised altogether contradictory statements about his possession over the
suit property in the earlier suit and in the present suit from which, it
appears that plaintiff has not come before the court with clean hands.
Relief of temporary injunction is an equitable relief which can be
granted in favour of the person who himself is doing equity. Perusal of
the prayer clauses of the plaint nowhere shows that plaintiff has
claimed relief of restoration of possession of the suit property.
14. Again, as mentioned earlier, plaintiff has not produced proper
and sufficient material to show that the bill of exchange produced by
him is in respect of payment of part consideration of Rs.39 Lakh by him
to the landlady because, there is no reference of suit property anywhere
in said bill of exchange and there is not proper material to show that
the plaintiff has paid that much amount to the landlady. Having regards
to all those aspects, this court is of the opinion that neither
prima-facie
case nor balance of convenience do lie in favour of the plaintiff. In the
result, there is no question of causing any irreparable loss to the
plaintiff if temporary injunctions as prayed are not granted in his favour.
There is no material to accept the prayer for appointment of Court
Receiver. For these reasons, by answering Point Nos.(i) to (iv)
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accordingly, I pass the following order.
O R D E R
Notice of Motion No.1956 of 2019 is dismissed.
Date :11/11/2021. (P.P.RAJVAIDYA)
Dictated on : 11/11/2011 Judge, C.R.No.62,
Checked on : 12/11/2021. City Civil Court,
Signed on : 12/11/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
18.11.2021 at 2.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 11.11.2021
Order signed by P.O. on 12.11.2021
Order uploaded on 18.11.2021
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