Order 1

Order Details: Notice of Motion
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
LONG CAUSE SUIT NO. 2474 OF 2019
M/s. Lime Light Studio
]....Plaintiff
Versus
The Municipal Corporation for
Greater Mumbai & Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 05th October, 2019.
Adv. Ashutosh Shukla a/w Adv. Shailesh Shukla for plaintiff
Adv. Ms. Chavan for Defendant/MCGM.
ORDER ON DRAFT NOTICE OF MOTION
1. Perused. Heard.
2. Plaintiff is seeking Adinterim relief to restrain defendants from
implementing an order dated 23.08.2019 revoking plaintiff's trade license.
3. Perusal of proceedings reveals that, plaintiff was issued a license to
run a business of shooting and processing of cinematography. Said license
was canceled by an order dated 06.02.2013 which was challenged by the
plaintiff in an appeal before the Small Causes Court, Mumbai. Defendants
issued another letter dated 15.05.2019 and threatened to seize the
property of the plaintiffs. Said letter was replied. Legal heirs of the branch
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of late Narendra H. Singh entered into some transactions in respect of their
shares in the property with M/s. Horizon Enterprises. It filed a Suit bearing
Suit Lodging No. 22/2015 before the Hon'ble High Court but no relief was
granted to it. Said suit is seeking possession of the allegedly purchased
property. Plaintiffs had filed the suit bearing L.C. Suit no. 1380/2019
wherein this Court refused Adinterim relief sought against order dated
04.02.2013 and 30.05.2019. A Plaintiff preferred appeal from order before
the Hon'ble High Court wherein the Hon'ble High Court has set aside the
order dated 04.02.2013 and directed the plaintiff to appear before
defendant no. 2 who shall hear the plaintiff and decide it's representation.
Accordingly, plaintiff has submitted all relevant documents before
defendant no. 2 who has passed impugned order without considering
plaintiff's documents.
4. I have gone through the documents produced on record by the
plaintiff as well as the defendants. At this stage, it has to be seen whether a
prima facie case is made out to grant Adinterim injunction as sought.
5. Impugned order reveals that defendant no. 2 has held that leave
and liscense agreement produced by plaintiff is not registered. M/s.
Horizon Enterprises is also owner of the property but demarcation is not
yet done. Dispute between M/s. Horizon Enterprises and plaintiff is still
pending and so the order dated 04.02.2013 of revocation of licence still
stands continued.
6. What appears from the impugned order that, defendant no. 2 has
ordered to continue order dated 04.02.2013 which is expressly set aside by
the Hon'ble Hight Court by an order dated 08.07.2019. This indicates that
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defendant no. 2 has virtually overturned the order of Hon'ble High Court
passed in A.O. Stamp No. 17522/2019. This circumstance itself is
sufficient to make out a prima facie case for the plaintiff.
7. Impugned order further reveals that, defendant no. 2 has failed to
consider that plaintiff is still in possession of the premises, in which the
business is carried out, as reflected in letter dated 30.05.2019 addressed by
defendant no. 3 to the plaintiff.
8. Advocate for plaintiff has relied upon M/s. Hemchand And
Company Vs. Municipal Corporation and Ors. 2016 (4) AIR(Bom) 54
wherein the Hon'ble Bombay High Court has held that
“Thus, this Court held that if the Officer empowered to grant
licence is satisfied that the applicant is in physical possession
of the premises in respect of which the licence is sought, he
cannot insist upon the applicant proving that his possession
is lawful. Only enquiry contemplated while considering the
prayer for grant of licence under section 394 of the said Act
of 1888 is whether the applicant is in physical possession
and whether otherwise he is entitled to the licence.”
9. In view of the observations of the Hon'ble Bombay Hight Court in
the authority cited Supra, when the plaintiff is in physical possession of the
premises, license cannot be canceled for refused simply because a dispute
is pending between plaintiff and M/s. Horizon Enterprises.
10. The plaintiff has produced on record copy of order dated 24.02.2015
in suit lodging No. 22/2015 passed by Hon'ble High Court. It reveals that
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Horizon Enterprises has filed a suit for partition. Thus, it is not in
possession of the property purchased by it. In such circumstances, the
question of demarcation cannot arise without the suit being decreed.
11. No doubt the copy suit lodging no. 22/2015 and the order therein
were not produced before defendant no. 2, but the plaintiff shown
willingness to produce those documents before defendant no. 2. However
on last date officer of defendants submitted that even if such documents
are now tendered, defendant no. 2 will not consider those.
12. Advocate for plaintiff also relied upon Formac Engineering Ltd.
and Ors. Vs. Municipal Corporation of Greater Mumbai and Ors,
MANU/MH/0317/2011. The Hon'ble Bombay High Court has said that
“Mr. Kamdar has invited my attention to SubSection 5 of
Section 394 and submits that the provision of appeal therein
would apply to the present case. It is not possible to agree
with him because Section 394 deals with a distinct
situation. It deals with a case where certain articles or
animals are being kept and certain trades, processes and
operations are being carried on. They shall not be carried on
without a licence. The various schedules that are referred to
in Section 394(1) regarding which a licence will be
necessary and can be granted does not deal with a licence
that is contemplated for establishment of any factory, work
shop or work place within the meaning of Section 390(1).
Therefore, the provision of an appeal which is provided to
challenge any action withholding a licence under Section
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394(1) cannot be extended and applied in a distinct
situation and to a distinct activity. Unless and until the
provision itself is specifically referred to in Section 390, by
interpretative process, the same cannot be read into it.”
13. In view of observations of Hon'ble Bombay High Court, the plaintiff
cannot file an appeal before the Small Causes Court against impugned
order.
14. Advocate for plaintiff submitted that, the plaintiff has withdrawn
earlier suit as well as appeal before Small Causes Court.
15. In the light of above circumstances, the impugned order and the
reasons therefore are prima facie not acceptable. Consequently, the
plaintiff has made out a case for grant of Adinterim relief as sought.
Hence the order
ORDER
1. AdInterim injunction in terms of prayer clause (a) is granted till
next date.
2. Leave is granted to register Notice of Motion.
3. Defendant to file reply to the Notice of Motion.
Sd/
(A. N. MARE)
Judge
City Civil Court,
Date: 05/10/2019 Gr, Mumbai.
Dictated & Typed on : 05/10/2019
Signed by H'Court : 05/10/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE: 07/10/2019 (Mr. S. B. Randive)
BoardClerk
TIME: 12:25
Name of the Judge(with Court
Room No.
Shri. A. N. Mare
(Court Room No.11)
Date of Pronouncement of
Judgment/Order
05/10/2019
Judgment/Order signed by
P.O.on.
05/10/2019
Judgment/Order uploaded on 07/10/2019
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