Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2866 OF 2019
CNR NO.MHCCO10078972019
IN
S.C. SUIT NO.2287 OF 2019
1. Garware Charitable Trust
Having its registered office at,
Garware House, 50A,
Swami Nityanand Marg,
Andheri(East), Mumbai400 057
2. Mr.Shashikant Bhalchandra Garware
Age 85 years, Indian Inhabitant
3. Ms.Monika Garware
Age 56 years, Indian Inhabitant
4. Ms.Sonia Garware
Age 28 years, Indian Inhabitant
5. Mr.Shripad Mukund Kuvelkar
Age 84 years, Indian Inhabitant
6. Mr.Ashok Madhukar Deshpande
Age 72 years, Indian Inhabitant
7. Mr.Bhupat Dalichand
Age 74 years, Indian Inhabitant
8. Mr.Vihar Vinayak Raakhunde
Age 56 years, Indian Inhabitant
9. Mr.Ramdas Baban Bhagat
Age 56 years, Indian Inhabitant
All above plaintiff nos.2 to 9 are
Trustees of the plaintiff no.1
having their office address at Garware
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Polyster Ltd., Garware House, 50A,
Swami Nityanand Marg,
Andheri(East), Mumbai400 057. ..Plaintiffs
V/s.
1. Fellowship of the Physically Handicapped
Having its registered office at,
FPH building, Lala Lajpat Rai Marg,
Haji Ali Road, Mumbai 400 034.
2. Mr.Atul Desai
Age: Not known, Indian Inhabitant
3. Mrs.Shobha Kamra
Age: Not known, Indian Inhabitant
4. Mr.Pravin Sanghvi
Age: Not known, Indian Inhabitant
5. Mrs.Phoola Kaul
Age: Not known, Indian Inhabitant
6. Mrs.Shital Dhanak
Age: Not known, Indian Inhabitant
7. Mr.Vilas Kolgaonkar
Age: Not known, Indian Inhabitant
8. Mr.Nitin Mehta
Age: Not known, Indian Inhabitant
9. Mrs.Shashi Dattani
Age: Not known, Indian Inhabitant
All above defendant Nos. 2 to 9 are
Trustees of defendant no.1 having their
office address at FPH building, Lala Lajpat Rai Marg,
Haji Ali Road, Mumbai 400 034. ..Defendants
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Ld. advocate Mr.Holambe Patil for the plaintiffs
Ld. advocate Mr.Vishal Phal for the defendants
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 01/11/2019
ORAL ORDER
1. This notice of motion is tendered by the plaintiffs
interalia for the relief of temporary injunction
thereby restraining defendant no.1 and/or
defendants their servants, agents from changing,
altering, removing and/or blocking the sign boards in
the name of 'Garware Sabhagriha' on the outer wall
of the said hall i.e. on the 5th floor of Fellowship of
the Physically Handicapped(hereinafter referred to as
'FPH' )building, Lala Lajpat Rai Marg,Haji Ali Road,
Mumbai 400 034 and also inside the said hall and at
the entrance gate of the FPH building of the
defendant no.1 and for the relief under the
provisions of order XXXVIII Rule 1 and 5 read with
order XXXIX of Code of Civil Procedure, 1908.
(hereinafter referred to as 'CPC')
2. In short the case of the plaintiffs is as under:
The plaintiff no.1 is a charitable trust and has done
some remarkable charitable work in educational,
medical fields and for senior citizens and other social
fields. The agreement dated 08/08/1981 came to be
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executed between plaintiff no.1 and defendant no.1.
Further plaintiff no.1 donated a sum of Rs.three lacs
for the purpose of renovation, repairs and air
conditioning as also for equipment and furniture and
further donated Rs.one lac for the creation of an
endowment so the income of which can be utilised
for the maintenance. As per the agreement,
defendant no.1 is entitled to look after the said hall
or rent it out or otherwise use the same and keep the
income so derived and to look after all expenditure
and maintain all accounts. In view of the agreement
dated 08/08/1981 it was decided that the said hall
will be named as 'Garware Sabhagriha' and same
shall never be changed or altered in any manner even
if any other donor contributes or agrees to contribute
at any time any sum to defendant no.1 for any
purpose. It was also agreed that the name 'Garware
Sabhagriha' shall always be written in sufficient bold
letters in English and Devnagari, on big
boards/illuminated signs and prominently and
conspicuously displayed inside and outside the hall
and at other places. On 20/02/1982, agreement
came to be executed between plaintiff no.1 and
defendant no.1 and further amount of Rs. Six lacs
forty eight thousand was paid by plaintiff no.1 to
defendant no.1 for the purpose of repair, renovation
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and for the other terms as agreed under the said
agreement. In view of the agreement dated
08/08/1981, the sign board in the name of 'Garware
Sabhagriha' was displayed inside and outside the
said hall of building of defendant no.1 and the main
entrance gate of FPH building. The said board has
been displayed for more than three decades.
However in or about 2018, it was noticed that the
sign board installed on the outer wall of the building
of defendant no.1 was blocked by another signage.
Accordingly by letter dated 02/02/2018 addressed by
plaintiff no.1 to defendant no.1, it was requested to
adhere the agreed terms of the agreement dated
08/08/1981. Further correspondence were
exchanged. Inspite of repeated requests and
correspondence, defendant no.1 failed to display the
name of 'Garware Sabhagriha' on the outside of the
wall for more than one year. Hence, plaintiff no.1
made complaint to the Charity Commissioner vide
letter dated 02/04/2019 for the subject matter and
accordingly the enquiry was conducted by the office
of Charity Commissioner. The officer was appointed
by the Charity Commissioner to visit the site to
inspect and to check the status of sign board/boards
of Garware Sabhagriha. The defendants to avoid any
adverse remark against them, have reinstated the
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sign board as it was earlier before the actual visit of
the officer. On 23/07/2018, plaintiff no.8 visited the
building of defendant no.1 to inspect the sign board
and to take photographs of the said sign boards, the
threats were given by the office bearers of defendant
no.1 not to visit FPH building for any purpose and
the sign board will be removed permanently. The
complaint was lodged with Tardeo police station.
The plaintiffs apprehend of removing of sign board
and hence filed the present suit alongwith
accompanying notice of motion.
3. The defendant no.1 filed reply to the notice of
motion. It is the contention of the defendant no.1
that the suit is not maintainable in view of the
arbitration clause incorporated in the agreement on
which the present suit is based. It is further
submitted by defendant No.1 that as per clause no.8
of the agreement and section 8 of the Arbitration and
Conciliation Act, 1996, the plaintiffs are bound to
invoke the arbitration clause after giving notice to
defendant no.1. In view of the same, the plaintiffs
are not entitled to file the present suit and not
entitled for any relief. Two sign boards are not
removed by defendants at any time by giving
undertaking to this Court on 25/07/2019 that the
board in the name of Garware Sabhagriha is at
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the entrance gate of the building and at the door
of the hall of the 5th floor and the defendants will
not remove it till next date. The plaintiffs have not
pleaded in the plaint that the defendants removed,
changed or altered the sign board which is displayed
on the outer wall of 5th floor of the said hall, as also
which is displayed inside the said hall and at the
entrance gate of FPH building. As per the agreement
dated 08/08/1981, the defendant no.1 after
completion of the repair work of the said hall
displayed a colour portrait of Shri Abbasaheb
Garware inside the hall at the cost of Rs.10,000/
although it was not a requirement of the agreement.
Defendant no.1 also displayed the sign board inside
the hall, on the outer wall of hall on the 5th floor of
the building and at the entrance gate. It is not
possible to put the sign board on the top of the
building on the outer side of the wall on the 5th floor
as it was not visible to people and also not advisable
for the purpose of advertisement. The bus stop
situated in front side of the gate of FPH building is
also named as Garware Sabhagriha which is
prominent place and sufficient for the advertisement
purpose of the plaintiffs. The agreement does not
provide for display of the name of Garware
Sabhagriha on the outer wall of FPH building. The
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said name is already displayed on the outer wall of
the hall on the 5th floor of the building, inside the hall
and on the entrance gate of FPH building.
Defendants therefore prayed for dismissal of the
notice of motion.
4. On the basis of the rival contentions of the parties,
following points arise for my determination and
findings to it are recorded for the reasons stated
hereinafter:
POINTS
(i) Whether the plaintiffs have made out a prima
facie case in their favour?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiffs?
(iii) To whom irreparable loss would be caused?
(iv) Whether the plaintiffs have made out case
under order XXXVIII Rule 1 and 5 read with order
XXXIX of Code of Civil Procedure, 1908?
(v) What order?
FINDINGS
(i) In the affirmative
(ii) In the affirmative
(iii) To the plaintiffs
(iv) In the negative
(v) As per final order
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REASONS
Point Nos. 1 to 3
5. At the outset from the pleadings, it is apparent that
the dispute is restricted only to one sign board to be
displayed on the outer wall of 5th floor of the
building of defendant no.1. At this juncture, even
there is no dispute as regard the agreement dated
08/08/1981 and the agreement dated 20/02/1982
executed between plaintiff and defendant no.1. On
perusal of the agreement dated 08/08/1981,there is
clause no.4 for the purpose of display of board in the
name of plaintiff no.1 and said is reproduced as
under:
“The said name Garware Sabhagriha shall always
be written in sufficiently bold letters in English
and Deonagri, on big boards/illuminated signs
and prominently and conspicuously displayed
both inside and outside the said hall and other
places as mutually approved by the Foundation
and the Donee trust. The same name shall also be
put on all printing and publishing matters
including records, invitations, receipts, bills, etc.
as may be used for the Said Hall by the Donee
Trust. The name on the sign boards shall
permanently and properly be maintained by the
Donee Trust at its own cost failing which the
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foundation will do so from the maintenance
account. No other name shall be written on the
sign boards or the printing and publishing
material concerning the said Hall.”
6. It is apparent from clause (4) that the said name of
Garware Sabhagriha shall always be written in bold
letters in English and Deonagri on big
boards/illuminated signs and prominently and
conspicuously displayed both inside and outside the
said hall. Even it contemplates that no other name
shall be written on the sign board. The contention of
the plaintiffs is that defendant No.1 will alter,
change, remove and/or block the sign board
presently displayed outside the wall of the building
of defendant no.1 on the 5th floor and also inside the
said hall and main entrance gate of the building of
defendant no.1. In order to substantiate the existence
of sign boards, the plaintiffs have produced the
photographs. Even it is the contention of the
plaintiffs that the sign board was displayed for more
than three decades and same was blocked by
another signage. The same was in the year 2018 and
accordingly the letter dated 02/02/2018 was
addressed to defendant no.1 on behalf of plaintiffs
and informed defendant no.1 that the representative
of plaintiff no.1 met and discussed with the manager
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of defendant no.1Mr.Baban Kodag and during the
course of discussion, he informed that the sign board
is under repair and should be installed shortly. On
behalf of the plaintiffs it was also informed that the
plaintiffs were ready to bear the costs for installation.
Even the letter dated 22/03/2019 was addressed by
the plaintiffs to defendant no.1 informing that the
sign board has been blocked by another signage that
has been installed by FPH in the past few days and
requested to remove the same. The plaintiffs again
issued letter/notice dated 07/05/2019 to the
President of defendant no.1 and requested to
remove the board of defendant no.1 covering the
plaintiff's board on the terrace immediately. The
complaint was made to the Charity Commissioner on
02/04/2019. The inspector of Charity Commissioner
was deputed for inquiry. On 09/07/2019, he
inspected the premises of defendant No.1 and
submitted his report to the Charity Commissioner.
The defendant no.1 addressed a letter dated
10/07/2019 to the Charity Commissioner wherein it
was informed that the defendant no.1 is not in
contravention of any terms of the said agreement and
that FPH has adhered to the entire agreement in its
true letter and spirit.
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7. The argument which is canvassed on behalf of
defendant no.1 is that the plaintiffs have not pleaded
in the plaint that the defendants removed, changed
or altered the sign board of Garware Sabhagriha
which is displayed on the outer wall of 5th floor of the
said hall, as also which is displayed inside the said
hall and at the entrance gate of FPH building. The
defendant no.1 has also filed the photographs. As
such there is no dispute as regard the display of the
board inside and outside of the hall. The Ld. Counsel
for the plaintiffs pointed out that the defendants wish
to twist the fact that the board which is displayed at
the entrance gate of the hall is installed at the gate of
the hall is sign board displayed at the outside of the
hall. He wish to point out that sign board displayed
at the outer wall must be visible from outside the
building. The said sign board is on the outer wall of
fifth floor.
8. No doubt it is not mentioned in the plaint that when
it was mutually agreed in respect of the location of
installing of the sign board, but at the same time it is
averred in so many words in the plaint that the sign
board is displayed inside and outside of the said hall
and at entrance of the main gate of the building. The
sign board has been displayed for more than three
decades. There is clause in the agreement that the
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sign board has to be displayed as per the wish of
plaintiff no.1trust and defendant no.1trust. The
stand of defendant no.1 in reply is that at three
places the sign boards are displayed is sufficient to
show that they were installed as mutually agreed.
The Ld. Counsel for defendant no.1 submitted that
plaintiffs in para.8 of the plaint contended that
defendant no.1 failed to display the name of Garware
Sabhagriha conspicuously on the outside of the wall
for more than 1 year. So, he would submit that this
statement suggest that the sign board itself was not
in existence. Hence, no relief can be granted. The
statement in para.8 of plaint cannot be read in
isolation. In Para. 7 of the plaint it is averred that
sign board in the name of 'Garware Sabhagriha' was
displayed inside and outside the said wall of building
of defendant no.1 and the main entrance gate of FPH
building in view of the agreement dated
08/08/1981. The plaintiffs have issued grievance
letters to the defendants. But, defendant No.1 did not
reply to those letters. The said conduct of defendant
No.1 prima facie, at this stage, cannot be ignored.
9. Ld. Counsel for the plaintiffs has drawn attention of
the Court to the report of Inspector of Charity
Commissioner who visited the suit building on
09/07/2019 and noticed that the sign board was
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displayed at the middle portion of the 5th floor, at the
entrance gate and also at the right side gate of FPH
building. On behalf of defendant no.1, a letter dated
10/07/2019 was issued to the office of Charity
Commissioner but in the said letter, the defendant
No.1 did not dispute the visit of inspector. The
report is prior to the institution of the suit which
discloses the existence of the board at the outer wall
of the 5th floor which shows that the board was in
existence at the outer wall of the building of
defendant no.1. The report is of an independent
authority and same has not been challenged. Even
the inspection was carried out in the presence of the
staff of defendant No.1. Therefore, the said report
gives strength to the case of plaintiff that the sign
board was installed at the outer wall of the 5th floor.
The allegations are that the sign board installed on
the outer wall of the building of defendant no.1 was
blocked by another signage. Apparently the
apprehension of the plaintiffs is well founded.
10. Ld. Counsel for defendant no.1 argued that clause
(8) of the agreement dated 08/08/1981
contemplates that all questions or differences which
shall at any time arise between the parties shall be
referred to the arbitration in accordance with the
provisions of Arbitration Act, 1940. The said clause
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is reproduced as under:
“All questions or differences whatsoever which
shall at any time arise between the parties hereto
touching or concerning this agreement or the
construction, meaning or effect thereof, or any
clause herein contained, or as to the rights, duties
and liabilities of the Parties hereto respectively,
shall be referred to arbitration in accordance with
the provisions of the Arbitration Act, 1940 or any
statutory modification thereof for the time being
in force and the Award given in accordance
therewith shall be final and binding on the Parties
hereto. The venue for such arbitration shall
always be Bombay only.”
11. He would submit that as per section 8 of the
Arbitration and Conciliation Act,1996 the matter is
required to be referred to arbitrator. Ld. Counsel for
defendant no.1 further submitted that he has taken
objection to that effect at the first instance. Ld.
Counsel for the plaintiff submitted that merely taking
objection in reply would not suffice the purpose.
Defendant no.1 has not filed any written application
and therefore objection is not sustainable. In order to
support his contentions, he has placed reliance upon
the judgment of Hon'ble Bombay High Court in
the case of Ganesh Trading Company V/s
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Government of Maharashtra, LAWS(BOM)20073
165, wherein the Hon'ble Bombay High Court held
that “ Sec.8 is very clear. The emphasis has to be laid
on words if a party so applies. These words make it
very clear that a party seeking a reference to
arbitration has to submit a written application.”
12. At this juncture, it would be proper to reproduce
sec.8 of the Arbitration and Conciliation Act, 1966.
“Power to refer parties to arbitration where there
is an arbitration agreement(1) A judicial custody,
before which an action is brought in a manner
which is the subject of an arbitration agreement
shall, if a party to the arbitration agreement or
any person claiming through or under him, so
applied not later than the date of submitting his
first statement on the substance of the dispute,
then, notwithstanding any judgment, decree or
order of the Supreme Court or any court, refer the
parties to arbitration unless it finds that prima
facie no valid arbitration agreement exists.
13. Thus, it is clear that the application has to be filed
and not only the application, the original arbitration
agreement is required to be filed. Mere statement in
the reply would not suffice the purpose. The Hon'ble
Bombay High Court in the case of Ganesh(supra) held
that section 8 is clear that a written application is
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required for reference to arbitration. Thus, there is
no doubt that the written application is required to
be filed for reference to arbitration. Hence the
objection in the reply without a separate application
does not stand to the scrutiny of law. The objection
does not hold good.
14. In view of the above discussion, it is apparent that
there is sign board on the outer wall of the 5th floor
and it has been displayed as per the terms of the
agreement. Thus, the needle of balance of
convenience tilt in favour of the plaintiffs. If the
display board is removed then it would amount to
breach of the terms of the agreement and thereby
would cause irreparable loss to the plaintiffs. Hence,
I answer point nos.1 to 3 in the affirmative.
Point No.4
15. The plaintiffs have not substantiated the argument as
regard the prayer under order XXXVIII Rule 1 and 5
read with order XXXIX of Code of Civil Procedure,
1908 and therefore the same cannot be considered.
Hence, I answer point no.4 in the negative.
Point No.5
16. In view of the forgoing discussion and findings to
point nos.1 to 4, notice of motion needs part
consideration. Hence, it is expedient to pass
following order:
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ORDER
1. Notice of Motion No. 2866/19 is partly made
absolute i.e. only in terms of prayer clause (a).
2. Costs in the cause.
3. Notice of Motion is disposed of accordingly.
01/11/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 01/11/2019
Transcribed on : 14/11/2019
Signed on : 16/11/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
16/11/19 at 12.10 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
01/11/2019
Judgment and order signed by P.O. 16/11/2019
Judgment/order uploaded on 16/11/2019
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