Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT
GR.BOMBAY
NOTICE OF MOTION NO.2833 OF 2019
IN
SUIT NO.2947 OF 2019
Junaid Salim Chawdhary
Aged 38 years, Occupation: Business
Indian Inhabitant, residing at 202, 286/B
2nd floor, Aiii Esstate, SG.GBaree Marg,
Kurla West, Mumbai-400 070G GGPlaintif
Versus
1G MrGTaufiq Ahmed Khan
Aged:-Not known, Occupation:-Business
Residing at 2-B/1116-1118 Raheja
Classiique, Oshiwara Link Road,
Andheri West, Mumbai-400 053G
OR
.ALFA Traeel Sereices
Haeing address at Dheeraj Heritage,
2-39/40, Milan Bridge, Signal,
Santacrui West, Mumbai-400054
2G MrsGSiddiiqua Taufiq Khan
Aged:-Not known, Occupation:-not known
Residing at 2-B/1116-1118 Raheja
Classiique, Oshiwara Link Road,
Andheri West, Mumbai-400 053G GGDefendants
LdG adeocate Naeed Chaudhary for the plaintif
LdG adeocate Shahiad Radhanpura for defendant nosG1
and 2
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CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 05/02/2020
ORAL ORDER
1G This notice of motion is interalia tendered by
the plaintif for seeking direction to be gieen
to the defendants to hand oeer suit premises
and further restraining the defendants from
interfering the possession of the plaintifG
2G The subject matter of the present notice of
motion are the suit shop nosG1,2 and 3,
ground floor, situated at ‘Sapna Complex’
285/123, SG.GBaree Road, Kurla(W), MumbaiG
(hereinafter referred to as ‘suit premises’ )G
3G HeardG
4G In short the contention of the plaintif is that
the defendants are owners of the suit
premisesG The plaintif has taken the suit
premises on the basis of two leaee and license
agreements dated 26/08/2014G The license
fees for the suit premises were transferred to
the accounts of defendant noG2G The electric
meter was installed in the name of defendant
noG1G The leaee and license agreements came
to an end on 25/08/2017 but the plaintif
continued in use and occupation of the suit
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premises and carried out the businessG
Defendant noG2 on 10/04/2019 eisited the suit
premises and forcibly put her lock in the
shutter and remoeed the plaintif from the
use, occupation of the suit premisesG The
plaintif’s all machinery and eiquipment worth
RsG30 lacs are lying in the suit premisesG The
defendants promised to remoee the lock and
restore back the use and occupation of the
suit premises to the plaintif if the electric
meter is restored backG The plaintif paid RsG3
lacs on 15/05/2019 and handed oeer four post
dated cheiques of RsG50,000/- each to Adani
Eslectricity Mumbai LimitedG After the
payment, the electric supply was restoredG
Despite that the defendants did not restore
the possession to the plaintifG The
documents of the plaintif are lying in the suit
premisesG The plaintif is sufering lossesG
Hence, the plaintif has fled the present suit
for restoration of possession with the
accompanying notice of motionG
5G The defendants haee combated the claim of
the plaintif by flling replyG
6. It is the stand of defendants that plaintif used
to pay the license fees and the electricity
charges regularly, howeeer, thereafter for one
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or the other reasons citing fnancial crunch
and due to insufcient income, he started
defaulting of payment of license fees and
electricity chargesG The plaintif was also
caught stealing electricity by the Vigilance
Department of Reliance Power Ltd and the
electricity meter of the suit premises was
disconnected and remoeed by the Power
Supply CompanyG The plaintif by letter dated
10/05/2016 addressed to defendant noG1
undertook to pay all the arrears of license fees
as well as to settle all electricity bills by
16/05/2016G Defendant noG1 was authoriied
by plaintif to sell plaintif’s assets and
eiquipment lying in the suit premises, if
plaintif fails to repay the arrears by
16/05/2016G Thereafter the plaintif cleared
some part of dues and prayed for further time
to clear the balance duesG The period of
license expired on 25/08/2017 and defendant
noG1 addressed letter to the plaintif on
08/07/2017 and sought clarifcation whether
plaintif wanted to renew the said leaee and
license agreementsG The plaintif eerbally
expressed his unwillingness to renew the
leaee and license agreements due to business
loss and fnancial strainG On 25/08/2017 on
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determination of the license period, the
plaintif handed oeer one set of keys of the
locks of the shops to defendant noG2 and
reiquested to keep the eiquipment in the suit
premisesG Despite the assurance gieen by the
plaintif and reiquest made by him from time
to time, the plaintif failed to remoee his
eiquipment from the suit premises and failed
to pay the arrears of license fees and
electricity chargesG The defendants submitted
that plaintif is not in possession of the suit
premises and therefore was not dispossessedG
Hence, prayed for dismissal of the notice of
motionG
7. On the rieal contentions of the parties,
following points arise for my determination
and fndings to it are recorded for the reasons
stated hereinafter:-
POINTS
(i) Whether the plaintif has made out a
prima facie case in his faeour?
(ii) Whether the needle of balance of
coneenience tilt in faeour of plaintif?
(iii) To whom irreparable loss would be
caused?
(ie) Whether the plaintif has made out case
for restoration of the possession of suit
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premises pending the disposal of the suit?
(e) What order?
FINDINGS
(i) In the negatiee
(ii) In the negatiee
(iii) To the defendants
(ie) In the negatiee
(e) As per fnal orderG
REASONS
Point Nos. 1 to 4
8. Certain facts are undisputed between the
parties as regard two agreements of the suit
premises entered into between them on
26/08/2014G The issue of payment of arrears
of license fees is not an issue at this junctureG
The stand of the plaintif is that plaintif has
been forcibly eeicted without following due
process of lawG The defendant’s stand is that
the plaintif eoluntarily handed oeer the
possession of the suit premises and therefore
not entitled for any relief that too in the
nature of interim mandatoryG
9. LdG Counsel for the plaintif has drawn the
attention towards certain documents to
demolish stand of the defendants that the
possession was handed oeer in or around
25/05/2017 and to bolster his stand that he
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continued in possession of the suit premises
thereafterG He pointed out that earious
amounts were transferred to the account of
defendant noG2G He pointed out accounts
statements and the receipts generatedG On
perusal of the receipt and accounts statement
following payments were made:-
Sr.No Date Amount Remark
1 03/05/2018 Rs.50,000/- March rent
2 03/05/2018 Rs.40,000/- March rent
3 10/05/2018 Rs.15,000/- March rent
4 07/07/2018 Rs.40,000/- April Rent
5 22/10/2018 Rs.50,000/- Rent
6 14/11/2018 Rs.50,000/- Rent
7 03/04/2019 Rs.25,000/- Rent
10. The plaintif has receieed the fees from
earious persons who are the customersG He
has fled the receipt dated 17/02/2019 of
Faiyai Shaikh for RsG9000/- and one Sarfaraj
Shaikh for RsG7,000/- dated 02/03/2019G The
plaintif has also fled electric bill dated
07/12/2018 of Adani Eslectricity which is
standing in the name of defendant noG1G The
application dated 07/12/2018 addressed to
the SrGManager of Adani Eslectricity Limited for
installing the meterG The photographs are
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also fled to show the possession of the
plaintifG
11. LdG Counsel for the plaintif further pointed out
that the stand of the defendants that the
plaintif has eacated the suit premises on and
around May 2017 falls down on the basis of
aboee referred documentsG On perusal of the
accounts statement and the receipts fled by
the plaintif, it prima facie shows that
payments were made by the plaintif eeen
after May 2017G If the plaintif had eacated the
premises in May 2017 or on 25/08/2017, there
was no occasion for him to make the payment
after May or August 2017G There is no
explanation from the side of the defendants
as regard the amounts receieed by them after
August 2017 saee and except that the plaintif
was clearing the outstanding that too at the
time of argumentsG But there is no detail
about the sameG This prima facie shows the
possession of the plaintif oeer the suit
premisesG The account statement also
reflects that plaintif made payment of
RsG50,000/- on 31/05/2019 to Adani electricityG
This payment prima facie at this stage shows
that plaintif was in possession throughout the
period after August 2017G
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12. To limit the controeersy that the contention of
the plaintif is for restoration of his
possessionG The plaintif was dispossessed on
10/04/2019G The plaintif met the defendants
after his dispossessionG The defendants
promised to remoee the lock if the electric
meter is restoredG The contention of the
plaintif is that he has paid amount of RsG3
lacs to Adani electricity and four post dated
cheiques of RsG50,000/- were handed oeerG The
meter was restored on 10/06/2019G At this
juncture, it is releeant to consider all these
dates as plaintif is seeking interim relief
which is mandatory in natureG It is settled
position that relief of mandatory injunction is
to be granted in exceptional circumstances
and when there is pressing need for the sameG
LdG Counsel for the defendants argued that in
a suit u/sG 6 of the Specifc Relief Act for
restoration of possession interim mandatory
injunction cannot be grantedG He placed
reliance upon the judgment of the Hon’ble
Supreme Court in the case of Tek Singh
V/s Shashi Verma and another, AIR 2019
Supreme Court 1047.
13G I had gieen conscious consideration to
the law cited in the aboee said judgmentG It is
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held that it is well settled that reeisional
jurisdiction u/sG 115 of the Cieil Procedure
Code is to be exercised to correct the
jurisdictional errorsG There is nothing in the
aboee cited judgment to restrict the power of
the trial court to direct for restoration of
possession by interim order pending the suitG
In the present case the aboee cited judgment
with greatest of respect is not applicableG
14. On the contrary, the Hon’ble Supreme
Court in the case of Dorab Cawasji
Warden V/s Coomi Sorab Warden and
others, (1990) 2 SCC 117 held that when a
mandatory injunction is granted at the interim
stage much more than a mere prima facie
case has to be made outG
15. No doubt this Court has power to exercise
discretion for grant of interim mandatory
injunction as laid down in the case of Dorab
Cawasji Warden(supra), it is necessary to
consider the guidelines gieen in that judgment
which are reproduced hereinbelow:-
“(1) The plaintif has a strong case for trialG
That is, it shall be of a higher standard than a
prima facie case that is normally reiquired for
a prohibitory injunctionG
(2) It is necessary to preeent irreparable or
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serious injury which normally cannot be
compensated in terms of moneyG
(3) The balance of coneenience is in faeour
of the one seeking such reliefG”
16. In the case in hand, as pointed aboee the
seiquence of the eeents which occurred are
dispossession of the plaintif on 10/04/2019,
subseiquent payment made by the plaintif on
15/05/2019 to the Eslectric Company and
restoration of the electricity on 10/06/2019G
The plaintif who claims to haee been
sufering irreparable loss did nothing and had
approached the Court at the end of July 2019
cannot be said to haee made out strong
prima facie case or exceptional circumstance
for grant of interim relief in nature of interim
mandatoryG Eseen allegation is that when the
plaintif had been to the suit premises, the
defendant noG2 has forcibly put the lock and
dispossessed the plaintifG Any oeeract of the
defendant noG2 has not been pointed outG The
facts in this case are not starlingG
The plaintif has not made out any strong
prima facie case and the needle of balance of
coneenience does not tilt in faeour of the
plaintifG The plaintif has not made out any
case to show that there is serious irreparable
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injury which cannot be compensated in terms
of moneyG The plaintif who alleged to haee
been dispossessed on 10/04/2019 rises from
slumber and claims for restoration of
possession pending disposal of suit at the end
of July, does not sound proper and cannot be
acceptedG This conduct of plaintif does not
show that this is a rare case under compelling
circumstancesG Hence, I answer point
nos.1 to 4 in the negativeG
Point No.5
17G In eiew of the aboee discussion and
fndings to point nosG1 to 4, this notice of
motion needs no considerationG Hence, it is
expedient to pass following order:-
ORDER
1G N/M NoG2833/2019 stands rejectedG
2G Costs in the causeG
3G N/M NoG2833/2019 is disposed of
accordinglyG
05/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 05/02/2020
Transcribed on: 13/02/2020
Signed on: 17/02/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
18/02/2020 at 4G00 pmG
MRSGTGCGKAMBLEs
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
05/02/2020
Judgment and order signed by P.O. 17/02/2020
Judgment/order uploaded on 18/02/2020
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