Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3342/19 in Comm. Suit No. 53/19. 1 Order.
MHCC010091542019
Presented on : 07-09-2019
Registered on : 07-09-2019
Decided on : 01-04-2021
Duration : 1 years, 6 months, 25 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3342 OF 2019
IN
COMMERCIAL SUIT NO. 53 OF 2019
Shri Dinesh Narayan Naik ...Plaintiff
Versus
Mrs. Rajkumari Kishanlal Julka ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 1st APRIL, 2021.
Mr. B.N.Poojari, Advocate for Plaintiff.
Mr. Rahul Arote, Advocate for Defendant.
ORDER
This is a motion taken out by plaintiff to restrain defendant
from evicting the plaintiff from possession of suit property i.e. M/s.
Hotel Raj Punjab Bar & Restaurant situated at Chembur, near Diamond
Garden. Perused replycumwritten statement submitted by defendant
landlord vide Exh.4.
-- 1 of 7 --
N/m No. 3342/19 in Comm. Suit No. 53/19. 2 Order.
2. Learned Adv. Poojari for plaintiff submits that plaintiff has
obtained the suit premises from the defendant landlord/owner for
running the suit property hotel, as mentioned above. Defendant
landlord has submitted Suit No. 572/2019 for possession and recovery
against the licensee/plaintiff. In present suit, in view of Leave & License
Agreement dated 24/06/2016, plaintiff has given security deposit of
Rs.20,00,000/. Initially the Leave & License Agreement was for the
period of three years, which expires on 31/03/2019. Thereafter,
according to plaintiff, it was orally extended for two years. Till date, no
receipts came to be issued by the defendant. Plaintiff has paid all taxes
till March2020. Despite repeated demands by the plaintiff, defendant
landlord is failed to furnish account details of security deposit of
Rs.20,00,000/. It is prayed for temporary injunction to restrain the
defendant landlord from ejecting the plaintiff.
3. Learned Adv. Rahul Arote for defendant landlord submits
that plaintiff has stopped the business and ran away from the suit
premises since February2018. Admittedly, Rs.20,00,000/ security
deposit was accepted by the defendant landlord in view of Leave &
Licence Agreement dated 24/06/2016. In execution of said agreement,
possession of the suit property hotel was given to the plaintiff. As
plaintiff has defaulted in payment of rent and various taxes, everything
was cleared by the defendant landlord. Defendant has tried to
approach the plaintiff, but he had shut down the hotel and ran away to
his native place. According to defendant, suit property hotel was sealed
by police in March2018. The electricity was disconnected. Various
dues of the government, municipal taxes, electricity charges etc. were
paid by the defendant. It is requested to peruse para no.8 in written
statement, wherein the amount of Rs.24,14,521/ is due towards
-- 2 of 7 --
N/m No. 3342/19 in Comm. Suit No. 53/19. 3 Order.
plaintiff. It is prayed to reject the motion.
ADMITTED FACTS :
4. Before adverting to fact in issue, it would be appropriate to
stipulate admitted facts at the inception :
a) Defendant is the owner and plaintiff is licencee.
b) Suit property hotel is owned by defendant.
c) In view of Leave & Licence Agreement dated
24/06/2016, it was handed over to the plaintiff initially
for the period of three years.
d) Security deposit of Rs.20,00,000/ paid by the plaintiff,
thereafter suit property hotel was handed over to the
plaintiff.
REASONS FOR ORDER
5. Plaintiff has prayed for temporary injunction. In view of
three golden principles contemplated to grant temporary injunction, it
is necessary to prove prima facie case by the plaintiff. At the same time,
it is incumbent on the part of plaintiff to prove the balance of
convenience. It is also necessary to establish by the plaintiff that it will
cause irreparable loss, if no injunction is granted in his favour.
6. On perusal of various documents submitted by the
defendant landlord alongwith written statement vide Exh.4, following
facts are established beyond doubt :
-- 3 of 7 --
N/m No. 3342/19 in Comm. Suit No. 53/19. 4 Order.
a) There are different two reports filed by the defendant on
12/06/2018.
b) In view of these two reports, plaintiff was running an
illegal activities.
c) Suit property hotel was sealed by Excise Department.
d) On 28/03/2018 electricity connection was disconnected
by the Reliance.
e) The BMC has issued notice to recover the dues of
entertainment taxes.
f) All dues were cleared by the defendant landlord in view
of challan at page no.25 and 26 of written statement vide
Exh.4.
7. In view of aforesaid various bullet points raised by this
Court, there is no document shown by the plaintiff about payment of
various taxes. On the other hand, various taxes and dues came to be
cleared by the defendant. According to plaintiff, even today he is
running the hotel. However, except bare words, plaintiff could not
submit any document before the Court, affidavit of Manager or any
servant, photograph of the hotel etc. to show that plaintiff is running
the hotel. On the other hand, defendant came with a case that plaintiff
has stopped the hotel and ran away from the suit property to his native
place. It is surprising to note, plaintiff is failed to deny fact of suit
property came to be sealed by the Excise department. Plaintiff is also
failed to deny the facts in issue i.e. disconnection of electricity by the
Reliance.
-- 4 of 7 --
N/m No. 3342/19 in Comm. Suit No. 53/19. 5 Order.
8. There are substantial allegation of defendant landlord in
two reports lodged to ACP, Chembur dated 12/06/2018. The material
averments from said letter are necessary to reproduce as follows :
ßfn- 10-02-2018 jksth Jh- fnus'k ;kauh ek>h
dqBfygh ijokuxh ulrkuk vkWdsZLVªkP;k fBdk.kh
ckjckykauk ukpor gksrk- lnj izdj.kh psacwj iksyhl
Bk.;kdMwu xqUgk nk[ky dj.;kr vkyk- jftLVj
vWxzhesaV izek.ks gkWVsyph loZ tckcnkjh Jh- fnus'k ;kaph
gksrh- ijarq lnj fno'kh R;kauh rsFkwu iG dk<qu ojhy
xqUg;kr ek>s uko Jh- fnus'k ;kauh fnys-Þ
ßfn- 16-03-2018 jksth ek- ftYgkf/kdkjh ;kaP;k
dk;kZy;kus ek÷;k gkWVsyyk lhy Bksdys- dkj.k fopkjys
vlrk njegk vkWdsZLVªkP;k LVsstph Qh Hkj.;kr vkyh
uOgrh- jftLVj vWxzhesaV izek.ks loZ izdkjph Qh Jh-
fnus'k ;kauk Hkj.ks vko';d gksrs- ijarq R;kauh Qh u
HkjY;kus ek>s gkWVsy lhy dj.;kr vkys- Jh- fnus'k
;kaP;k'kh lnj izdkjkckcr laidZ lk/kyk vlrk R;kauh
^eh xkoh vlwu eh vkrk iq<s eh gkWVsy pkyow 'kdr
ukgh* vls rksaMh lkafxrys-Þ
ßfn- 08-06-2018 jksth ek÷;k eksckbZy oj ek>s
O;oLFkkid Jh- fot; xqIrk ;kauh Qksu dsyk o lkafxrys
dh] dks.kh fnus'k uk;d ukokpk O;fDr vkyk vkgs o
eyk ne nsr vkgs dh] ^gs gkWVsy ek>s vkgs- eh
pkyok;yk ?ksrys vkgs- rw bZFks clk;ps ukgh-* R;kizek.ks
ek÷;k eqyhus fnus'k uk;d ;kl R;kP;k eksckbZyoj dkWy
dsyk ¼eks-dz-9820262742½ o fopkjys dh] ^rq>s
gkWVsy e/;s dk; dke vkgs\* R;koj R;kus lkafxrys dh]
^ek>s fMikW>hVps ohl yk[k #i;s fu?kr vkgs o rs eyk
gos vkgs- ukghrj eh gkWVsy pkyw ns.kkj ukgh- gkWVsy
lhy djsu-* ijarq R;kl ek÷;k eqyhus lkafxrys dh]
^jftLVj vWxzhesaV izek.ks rqyk loZ Qh Hkjk;ph gksrh- rh
rw u Hkjrk ek>s gkWVsy lhy d#u Vkdysl-* ,o<;koj
R;kus Qksu dV dsyk- rhu fnol >kys- jkst ek÷;k
gkWVsye/;s ;sÅu nenkVh djhr vkgs- ek>k O;olk; can
dj.;kph /kedh nsr vkgs- eh ,d fo/kok efgyk vlwu
ek÷;k eqyh f'kok; ek>s nqljs dq.khgh ukgh- fu;ekuqlkj
#-26]00]000@& fg'kksckps gksrkr- fMikW>hV #-
-- 5 of 7 --
N/m No. 3342/19 in Comm. Suit No. 53/19. 6 Order.
20]00]000@& vkgsr- ek>sp #-6]00]000@& fu?
krkr- ijarq Jh- fnus'k uk;d eyk /kedkowu ek÷;kdMs
#-20]00]000@& ph ekx.kh djhr vkgs-Þ
9. In respect of aforesaid allegations submitted in writing by
the defendant to ACP, Chembur and Sr.P.I. of Chembur Police Station,
it is nowhere denied by the plaintiff. However, defendant landlord has
specifically mentioned that Mr. Vijay Gupta is running the hotel. It is
necessary to note, various dues as mentioned in written statement
calculated to Rs.24,14,521/ came to be paid by the defendant landlord.
Plaintiff has intentionally avoided to reply in respect of aforesaid
payment by the defendant. In short, there is no prima facie case in
favour of plaintiff.
10. It is material to note, plaintiff has submitted written
statement in Suit No. 14777/18 submitted by the defendant landlord.
Present relief in respect of recovery of deposit could have claimed by
the plaintiff as counterclaim or by way of countersuit for settlement of
account. Therefore, the issue in respect of tenability of the suit is
framed by this Court.
11. According to plaintiff, he has paid the rent regularly till
March2020. It is surprising to note, relations between plaintiff and
defendant came to be strained as police report is lodged by the
landlord, civil suit is filed against the plaintiff etc. It is difficult to
believe that as such relations are there between the parties, even though
plaintiff has paid the rent till March2020 without demand of any
receipt. There is no balance of convenience lies in favour of plaintiff.
All dues of taxes have been paid by the defendant landlord. Therefore,
-- 6 of 7 --
N/m No. 3342/19 in Comm. Suit No. 53/19. 7 Order.
it will cause no irreparable loss to the plaintiff. Hence, the order :
ORDER
1. Notice of Motion No. 3342/2019 stands rejected.
2. Issues are framed by this Court vide Exh.7. Parties may
submit list of witnesses and schedule of case management
hearing positively on 15/04/2021. In default to submit list
of witnesses and schedule of case management hearing,
court may proceed for dismissal.
3. N/m No. 3342/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 01/04/2021. Mumbai.
1. Dictated on : 01/04/2021.
2. Transcribed on : 27/04/2021.
3. Signed on : 29/04/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29/04/2021. 3.30 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 01/04/2021.
Judgment/Order signed by P.O. on 29/04/2021.
Judgment/Order uploaded on 29/04/2021.
-- 7 of 7 --