Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit 173/2019
MHCC010075122019 Presented on : 18/07/2018
Registered on : 07/11/2019
Decided on : 03/05/2023
Duration : 3Y 5M 26D
Exh.40
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
COMMERCIAL SUIT No.173 of 2019
Turkish Airlines Inc.
A company incorporated under the laws of
Republic of Turkey & having its registered
office at Ataturk Airport, Yeslikoy, Bakirkoy,
Istanbul. And as per RBI permission dated
18/9/2003 under Foreign Exchange
Management (Establishment in India of a
branch or office or other place of business)
having its branch office address at Lodha
Supremus, Unit No. 1007, Senapati Bapat
Marg, Lower Parel, Mumbai 400013.
...PLAINTIFF
VERSUS
Manoj Gokulchand Seksaria,
Karta and Manager, Manoj Gokulchand
Seksaria (HUF), Flat No.33, Maheshwar
Niketan 5B, Pedder Road, Mumbai 400026
...DEFENDANT
Shri Santosh Jagtap, learned advocate for the plaintiff.
Shri Rahul Pandey I/b. M/s Pandey & Company, learned
advocates for the defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
J U D G M E N T
(Delivered on 3/5/2023)
This is a suit for recovery of sum of Rs.37,80,000/ with
interest from the date of suit till realization of the entire amount.
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2. It is case of plaintiff that it is a company incorporated
under the laws of the Republic of Turkey and having its registered office
at a Ataturk Airport, Yesilkoy, Bakirkoy, Istanbul and as per RBI
permission dated 18.9.2003 under Foreign Exchange Management
(establishment in India of a branch or office or other place of business)
having its branch office at Lodha Supremus, Lower Parel, Mumbai.
Plaintiff is international airline service provider with an operational
fleet of cargo aircraft and carrier.
3. Defendant represented that he is owner and possessor of
property on 1st floor, adm. approx. 4000 sq.ft. built up area in building
known as Time Square on plot bearing CTS No. 349 and 349/1 at
Gundavali, Taluka Andheri MSD and had intention to give the said
premises on leave and license basis. On such representation the plaintiff
entered into registered leave and license agreement dated 15.4.2011
with defendant for a period of 5 years commencing from 1.5. 2011 and
ending on 30.4.2016. A supplementary agreement dated 10.5.2011 in
continuation with the agreement dated 15.4.2011 executed between
them regarding security deposit (hereinafter referred as ‘security
deposit agreement’).
4. As per the terms of security deposit agreement, the plaintiff
had made payment of Rs.37,80,000/through cheque dated 19.4.2011
to the defendant towards refundable security deposit. As per clause 3 of
the said agreement, the plaintiff had regularly made payments to the
defendant towards monthly license fees in advance or on or before 10th
of every month. Before termination of the said agreement the defendant
had threatened Mr Prashant Karbhari personal of the Plaintiff’s office to
impose damage of Rs.10,00,000/ as per clause 6 & 11 of the said
agreement. Before termination of the said agreement the plaintiff vide
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its email dated 17.3.2016 requested the defendant to extend the term of
agreement.
5. On 17.3.2016 defendant contacted Mr Mehmat Akay of
plaintiff’s office through email and refused the request of extending the
term of the said agreement and also said that he has already entered
into fresh agreement from 1.5.2016 and the plaintiff had to vacate the
said premises on 30.4.2016.
6. On 27.4.2016 plaintiff has vacated the said premises and
handed over the keys of the said premises to the defendant. plaintiff has
performed its obligation to hand over possession to the defendant as per
the said agreement. However, defendant neglected to comply with
obligation to return the refundable security deposit of Rs.37,80,000/
on termination of the said agreement.
7. Plaintiff repeatedly requested the defendant through email
and calls to refund the security deposit, however, defendant ignored
and neglected to refund the security deposit. Defendant has not
responded to any of the emails or calls. Therefore, plaintiff constrained
to issue demand notice dated 14.7.2017 to the defendant calling upon
him to clear the outstanding dues. Defendant has given reply to the said
notice through advocate for fixing the meeting for giving inspection of
the documents. However, advocate of defendant had assured that he
will take instructions from defendant and will reply. He informed that
defendant had undergone heart surgery and therefore, he won’t be
available for 2 months. After months, plaintiff and his advocate tried to
reach out to defendant’s advocate to find out health condition of
defendant and to schedule the meeting, whereby advocate of defendant
informed that from last 2 months defendant has not contacted him. On
20.11.2018 plaintiff has sent letter through advocate to the defendant
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giving last opportunity to take inspection of the documents. However,
defendant has not given reply to the notice and also not visited office of
plaintiff for taking inspection of the documents. Defendant has not
refunded the said security deposit amount. Hence, plaintiff has
exhausted the remedy of preinstitution mediation but matter could not
settle. The concerned authority has issued nonstarter report on
18.4.2019. Hence this suit.
8. Defendant has filed written statement at Exhibit 7 and
submitted that this court has no jurisdiction to entertain and try this
suit. Suit is time barred. Suit is without cause of action.
9. Defendant contended that on 8.4.2019 his advocate has
sent letter to plaintiff for inspection of documents but he failed to give
inspection. After receiving the copy of plaint, advocate of defendant
sent letter dated 17.2.2020 for inspection of all original documents but
plaintiff failed to give inspection. Plaintiff has suppressed vital
documents from the court.
10. Defendant denied that plaintiff is a company incorporated
under the laws of the Republic of Turkey. Defendant admitted he is
owner and possessor of the property on 1st floor, in building known as
Time Square at Andheri (E), Mumbai and entered into Leave and
License agreement dated 15.4.2011 with plaintiff, whereby defendant
had granted license to the plaintiff for a period of 5 years to use and
occupy the said premises commencing from 1.5.2011 and ending on
30.4.2016. Defendant never executed a supplementary agreement dated
10.5.2011 in continuation with agreement dated 15.4.2011. It was
agreed between plaintiff and defendant that the furniture and fixture
and four toilets of defendant will be demolished by the plaintiff and
plaintiff will compensate the defendant with Rs.37,80,000/ as
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compensation against cost of interior damages of the premises.
Therefore, plaintiff has paid Rs.37,80,000/. On the face of the
document (agreement dt.10/5/2011) it appears that signature of
defendant is fake and bogus. Therefore, defendant after receiving copy
of plaint immediately sent letter to advocate of plaintiff for giving
inspection of the document but plaintiff failed to give inspection.
Therefore, defendant has given complaint in Andheri police station on
18.2.2020. Defendant denied that he has threatened personal of
plaintiff as alleged. He also denied that plaintiff has vacated the
premises on 27.4.2016. Defendant has sent email dated 11.4.2016 to
the plaintiff informing that the period of leave and license will expire on
30.4.2016 and defendant will not extend the said agreement. In view of
above pleadings, the defendant has denied all other adverse contents of
plaint.
11. Learned predecessor Shri S.N. Yadav has framed issues at
Exh.12 and I recorded findings thereon for the reasons stated as under.
ISSUES FINDINGS
1. Whether the plaintiff proves that he had
deposited Rs.37,80,000/ as security
deposit by you and license agreement
dated 15.4.2011?
…No.
2. Whether the plaintiff proves that after
handing over the vacant and peaceful
possession of the suit premises the
defendant had not refunded the security
deposit?
… Redundant.
3. Whether the plaintiff is entitled for refund
of security deposit of Rs.37,80,000/?
…No.
4. Whether the suit is within limitation? …Yes.
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5. Whether this Court has jurisdiction to try
the suit?
…Yes.
6. What order and decree? … As per final
order.
REASONS
12. Heard learned counsel of both parties. Plaintiff has
examined its authorised representative Mr. Ibrahim Hakki Guntay
(PW1) at Exh.15. In rebuttal, defendant has examined himself (DW1) at
Exh.29. Plaintiff relied on the documents : Leave and license
agreement dt.15/04/2011, Suplementary agreement dt.10/05/2011,
Email dt. 17/03/2016, Notice dt.14/07/2017, Reply letter
dt.24/07/2017, Letter dt.20/11/2018 with postal acknowledgment
(Exh.18 to 23 respectively). Defendant relied on the documents :
Advocate letter dt. 08/04/2019, 17/02/2020, Police complaint dt.
18/02/2020 and Email dt.11/4/2016.
13. Learned counsel of defendant relied on case law of
M/S. Schmenger Gmbh And Company .vs. M/S Saddler Shoes
Private, dt. 29 October, 2010, in Civil Suit No.689 of 1999 &
Application No.3189 of 1999, Hon’ble Madras High Court
15. It is to be noted that in the said Order 29, CPC, the
Corporation includes any Company registered under
the Companies Act, 1956. In the suit for recovery of money filed
by the plaintiffCompany, it should be filed by the person
authorised by the Board of Directors of the plaintiffCompany,
who shall verify and institute the suit. The suit should have been
filed by the competent person. To institute a suit on behalf of the
plaintiffCompany, it can only be filed by the Directors,
specifically empowered by the Board of Directors to file the suit,
and in this case, only the Liaison Officer has filed the suit. Even
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the Director is not competent to file the suit on behalf of the
Company, unless the specific power is conferred on him. The
Power of Attorney should have been issued to the Director to file
the suit on behalf of the Company on the basis of the Resolution
passed by the Board of Directors in their meeting held in that
regard. The suit is only then held to be validly instituted by the
competent person who has been authorised by the Company and
when once the Resolution is passed, authorising the Managing
Director by giving Power of Attorney in favour of the Director of
the Company and then no further Resolution in that regard is
necessary. The Company can always authorise some person to
sign on behalf of the Company and if the Company does not
chose to do so, it can act in accordance with Order 29 Rule 1 CPC
and it can rely on the Order 29 CPC, as in fact, a constituting
agent to sign if necessity of giving an express authority. In that
way, Order 29 CPC is read only merely as a permissive and not
mandatory. In some cases, if the suit is filed by the Company,
even the Secretary is competent person to sign and verify the
pleadings. As per the Memorandum/Articles of Association of the
Company, if the Directors who were jointly authorised to decide
to institute the suit, and when the Directors have passed no
Resolution deciding to initiate the suit, binding the institution
with the result of the suit, and the suit having been filed without
there being any Resolution and as the Corporation/Company
could only file the suit, if there is any Resolution for the same, the
suit is not maintainable. In the present case, the suit is not filed
by the authorised person under Order 29 Rule 1 CPC and suit as
such is not maintainable and in the case on hand, there is no
proof to show that the Liaison Officer was so authorised by the
Board of Directors in their meeting, authorising him to initiate
the suit.
14. Present suit has been filed by plaintiff through Mr. Ibrahim
Hakki Guntay a authorised signatory and attorney vide power of
attorney dt. 15/12/2016. Plaintiff has filed photocopy of the power of
attorney with plaint at page no.25 to 41. The said power of attorney
dt.15/12/2016 indicates that Chief Marketing Officer and Deputy
Chairman & CEO of plaintiff being authorised signatories by virtue of
powers vested in them through decision no.13 dt.22/04/2005 published
and declared in the Turkish Trade Registry Gazette, issue no.6305
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dt.17/05/2005 and through Turkish Trade Gazette, issue no.7497
dt.09/02/2010 respectively nominated, constituted, appoint confirmed
and delegated powers to Mr. Ibrahim Hakki Guntay, a authorised
signatory and attorney of the Airlines, to act for and on behalf of Airline
for the Western and Southern regions of India appointing him as the
Director for the Airline with the power to act for and on behalf of the
Airline and in the name of the Airline with a view to protecting or
furthering its interests in a bonafide and appropriate manner.
15. Plaintiff has not produced original power of attorney for
verification of the photocopy which is filed on record. So also plaintiff
has not produced copy of resolution of board of directors pertaining to
the authorization. PW1 admitted in cross examination that he dose not
have copy of board resolution to show that he is authorised to file this
suit. In view of ratio laid down above cited case law it can be said that
present suit is not filed by authorised person under order 29 rule 1 of
CPC and therefore suit is not maintainable.
As to issue no.1 and 2 :
16. It is admitted fact that leave and license agreement
dt.15/04/2011 executed between plaintiff and defendant, whereby the
plaintiff has given licensed premises for use and occupation of plaintiff
on monthly license fees of Rs.2,10,000/ commencing from 01/05/2011
and ending on 30/04/2016. It is also admitted that supplementary
agreement dt.10/05/2011 (Exh.19) executed between the parties and
thereby agreed that the licensee (plaintiff) in additional to the license
fee shall reimburse to the licensor a sum of Rs.2,10,000/ commencing
from 01/05/2011 ending with 30/04/2016. There is no clause of
security deposit in supplementary agreement (Exh.19). The claim of
plaintiff is based on supplementary agreement i.e. “Security deposit
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agreement”. Defendant has denied that it has executed the security
deposit agreement. Thus, it seems that there are two supplementary
agreements.
17. Plaintiff has produced photocopy of security deposit
agreement at page no.7980 with list Exh.10 and contended that
original security deposit agreement is in the custody of the defendant.
According to the plaintiff security deposit agreement executed on
15/04/2011. I have gone through the photocopy security deposit
agreement (page no.79 to 80 filed with list Exh.10). On first page it is
mentioned “This is in continuation of the agreement dt.15/04/2011
between Manoj Gokulchand Seksaria (HUF) by its Karta and Manager...
and Turkish Airlines...”. On last page of the said agreement it is
mentioned “the parties hereto have hereunto set and subscribed their
respective hands the day and year first hereinabove written”. However
date of the execution of the security deposit agreement is not
mentioned anywhere in the said agreement. Moreover, defendant has
denied his signature on the said documents. As per the said security
deposit agreement the plaintiff has paid security deposit of
Rs.37,80,000/ to the defendant refundable on expiration of the license
period. Pertinent to mention here that if really plaintiff has paid the said
amount towards the refundable security deposit, certainly original of
the said agreement would be with the plaintiff and not with the
defendant. Therefore, the defence of the defendant is probable that the
said amount of Rs.37,80,000/ was paid by the the plaintiff towards
compensation against costs of interior damages of the licensed
premises. Defendant has reproduced as goods as all contents of written
statement in his chief examination. During his cross examination
nothing is brought on record to disbelieve his testimony. Defendant has
filed complaint against Mr. Ibrahim Hakki Guntay in Andheri Police
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Station on 18/02/2020 regarding forged and fabricated signature on
the agreement dt.15/04/2011. The said copy (Exh.32) shows the
endorsement of the police authority.
18. In view of above discussed evidence, plaintiff failed to
prove security deposit agreement. Consequently plaintiff failed to prove
it had deposited Rs.37,80,000/ towards refundable security deposit
with defendant. Thus, question of refund of the security deposit by the
defendant dose not arise. It is admitted fact that plaintiff has handed
over vacant possession of the licensed premised to the defendant.
Therefore, I answered issue no.1 in negative. In view of findings on
issue no.1, the question of refund of security deposit does not arise,
hence, issue no.2 become redundant.
As to Issue no.4 :
19. As per the leave and license agreement dt.15/04/2011 the
licensed premises was given to the plaintiff for a period of five years
commencing from 01/05/2011 ending with 30/04/2016. Present suit
filed on 18/03/2018. Prior to institution of the suit plaintiff has
exhausted remedy of preinstitution mediation by filing application on
15/02/2019. The learned DLSA, Mumbai has issued non starter report
on 18/04/2019. Thus, suit is within limitation. Hence, I answered issue
no.4 in affirmative.
As to Issue no.5 :
20. The leave and license agreement dt.15/04/2011 is
admitted fact. Plaintiff is a Airline company. It has taken the suit
premises for business purpose from defendant on leave and license
basis. Thus, subject matter of this suit is commercial dispute within the
meaning of category mentioned in section 2(1)(c) of the Commercial
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Courts Act, 2015. Moreover suit property situated within the
jurisdiction of this Court. In view of above facts, this Court has
jurisdiction to try and entertain this suit. Therefore, I answer issue no.5
in affirmative.
As to Issue no.3 :
21. In view of above discussion the suit is not filed by the
authorised person under order 29 rule 1 of CPC and therefore suit is not
maintainable. Therefore on this ground plaintiff is not entitled for the
relief claimed. Moreover in view of answer to the issue no.1 plaintiff
failed to prove that he had deposited Rs.37,80,000/ towards security
deposit with the defendant. Therefore also plaintiff is not entitled for
the relief claimed. Thus, I answer issue no.3 in negative. In view of
peculiar facts of this case, it is desirable that both parties shall bear their
own costs. Hence, I pass following order on issue no.6.
ORDER
1. Suit stands dismissed.
2. Both parties do bear their own costs.
3. Decree be drawn up accordingly.
Date : 03/05/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Direct dictated on : 03/05/2023.
Checked on : 03/05/2023.
Signed on : 03/05/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
03/05/2023.. Mr. Pranit Ghodke
UPLOAD DATE AND TIME NAME OF CLERK TYPIST
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of announcement of Order 03/05/2023.
Order signed by P.O. on 03/05/2023.
Order uploaded on 03/05/2023.
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