Order 10

Order Details: Order on Exhibit
Pdf Text: Order dtd. 08.09.2025 :: 1 :: Exh.46 Exh.14 L.E. &C. Suit No.8 of 2024
CNR No. MHSCA- 30001032024
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit -46
In
Order below Exhibit- 14
In
L.E. & C. Suit No.8 of 2024
M/s.Hotel Imperial Palace (I)
Through its Partner Mr. Jaspal Singh Chandok ….... Plaintiff.
V/s.
Finefoods Hospitality Private Limited …... Defendants.
Advocate for plaintiff : Mr. Omprakash P. Pandey M/s. Pandey & Co.
Advocate for defendant : Mr. M. A. Chandan
Coram : P. P. Naigaonkar,
Judge, C.R. No. 38 (B.B.)
Date : 08th September, 2025
Oral Order :
1. This is the application filed by the plaintiff with many prayers i.e.
for striking off defence, temporary injunction etc.
2. By this application, the plaintiff has prayed that, pending the
hearing and final disposal of the suit, the defence of the defendant be
strike out for defying the Order and committing breach in contravention
to orders and directions passed by this Court below Exhibit-14 dtd.
13.03.2025. The plaintiff has further prayed that, the defendant
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themselves or anybody claiming through them be restrained by Order of
injunction from entering upon, remaining upon, and/or occupying the
portion of the suit building i.e. Ground Floor consisting of Restaurant
3rd Floor and 4th Floor consisting of rooms for lodging purpose along-
with the roof top of the premises of the suit building until the defendant
comply with the Order passed below Exhibit-14. The plaintiff has also
prayed for grant of injunction from removing or taking away the
articles, goods, things, fixtures, belongings in the suit property i.e.
Ground Floor consisting of Restaurant, 3rd and 4th Floor consisting of
rooms for lodging purpose along-with the roof top premises of suit
building in any manner what-so-ever nature.
3. After the receipt of this application i.e. on 16.04.2025 my
learned Predecessor was pleased to call the say of other side. The other
side has not filed say despite of opportunities. Hence, ‘no say’ order
was passed on 09.05.2025. Against the said Order, the defendant has
preferred application below Exhibit-49 on 17.06.2025. On the said
application, say of plaintiff was called. Accordingly, the plaintiff has
filed the say. Arguments were heard and by Order dtd. 25.06.2025 the
said application was rejected. As the said application Exhibit-49 was
rejected, the present application filed below Exhibit-46 is proceeded
without say. On 19.07.2025, the Report of Cash Department was called.
Accordingly, the Report is received. As per the Report, it appears that,
the defendant has not deposited any arrears of licence fees as per Order
passed below Exhibit-14.
4. Heard, learned Advocate for the plaintiff. Though, the reply was
not filed, an opportunity was given to the learned Advocate for the
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defendant for advancing the arguments.
5. As far as facts of the case, it appears that, the plaintiff has filed
the above suit against the defendant under section 41 of Presidency
Small Causes Court Act, 1882, for decree of possession of the suit
property i.e. Ground Floor consisting of restaurant premises, 3rd and 4th
floor consisting of rooms for lodging purpose along with the roof top
premises admeasuring 746.11 sq. meters situate at CTS No. 45- 46, 45
Teli Park Road, Near Criticare Asia Hospital, Andheri East, Mumbai
400069 known as Hotel Imperial Palace (I) and for order and decree of
Rs.12,63,85,965/- as per the particulars of the claim being exhibit-16
along with the further liquidated damages under clause 4.5 of the
Registered Leave and License Agreement dated 4/9/2023 and for order
and decree for Rs.30,00,000/- to pay to the plaintiff further pre-
estimate liquidated damages under clause 5.4 of the registered leave
and license agreement @ Rs.1,00,000/- per day from the date of
termination of the agreement i.e. 21/12/2023 till filing of the suit as
per Sr. No. III of the particulars of the claim as exhibit-16 and further
from 23/1/2024 till disposal of the suit or till the defendant quit and
fully vacate the suit property and hand over the possession to the
plaintiff whichever earlier and for order and decree thereby the
defendant be ordered and decree to pay to the plaintiff pre-estimate
liquidated damages as per clause 12.2 of the registered leave and
license agreement towards the license fee towards the un-expired
locking period i.e. from 1/2/2024 till 31/6/2026 and for enquiry to
determine mesne profits payable by the defendant to the plaintiff along
with the interest at such rate as may be found reasonable by this Court
under Order XX Rule 12 of CPC 1908 for the period from date of
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termination of the leave and license agreement i.e. 21/12/2023 till such
time as defendants quit and fully vacate the suit property and pending
the hearing and final disposal of the suit the defendants be ordered and
directed to pay Rs.42,50,805/- towards outstanding monthly license
fees commencing from 22/1/2024 to the plaintiff as per exhibit-16 to
the plaint and pending the hearing and final disposal of the suit the
defendants be ordered and directed to pay to the plaintiff the monthly
license fee as per clause 4 of the registered leave and license agreement
for each succeeding months with agreed increase till disposal of the suit
and for injunction order restraining the defendants from illegally service
Sheesha, running a kitchen and cooking on the roof top of the suit
property without obtaining the requisite license and running a
restaurant / hotel and from inducting any third party in the suit
property or any part thereof under any arrangement whatsoever and
restraining the defendants, its agents, officers, servants and all persons
claiming through the defendants be restrained by order and injunction
of this Court from in any manner assigning, selling, transferring,
alienating, selling, disposing of and/or dealing with and/or inducting,
and/or encumbering and/or creating any third party right or interest of
the suit property in any manner whatsoever and directing the
defendants to furnish TDS certificate for the amount deducted at TDS at
the time of payment of monthly license fee and for cost of the suit.
6. It appears that, after filing the above suit, plaintiff took out
interim application exhibit-14 in L.E. & C. Suit No. 8 of 2024 for the
reliefs that the defendants be ordered and directed to pay to the
plaintiff a sum of Rs.42,50,805/- towards the pending monthly license
fee due under clause 4 of the registered leave and license agreement as
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per Sr. No. I of the particulars of the claim at exhibit-16 to the plaint
and in alternative thereto the defendant be ordered and directed to
deposit in this Court a sum of Rs.42,50,805/- towards the pending
monthly license fee due under clause 4 of the registered leave and
license Agreement as per Sr. No. I of the particulars of the claim at
Exhibit-16 to the plaint and defendants be ordered and directed to pay
to the plaintiff a sum of Rs.4,67,28,000/- towards the liquidated
damages under clause 4.5 of the registered leave and license agreement
@ Rs.1,00,000/- per day plus GST calculated from 10th day of each
month towards arrears of the each month license fees till filing of the
suit i.e. 22/1/2024 as per Sr. No. II of the particulars of the claim at
Exhibit-16 to the plaint and in alternative thereto defendant be ordered
and directed to deposit in this Court a sum of Rs.4,67,28,000/- towards
liquidated damages under clause 4.5 of the registered leave and license
agreement @ Rs.1,00,000/- plus GST calculated from 10th date of each
month towards arrears of each monthly license fees till filing of the suit
i.e. 22/1/2024 as per Sr. No.II of the particulars of the claim at exhibit-
16 to the plaint and defendants be ordered and directed to pay to the
plaintiff a sum of Rs.1,00,000/- per day towards further liquidated
damages under clause 4.5 of the registered leave and license agreement
from the date of the filing of the suit i.e. 22/1/2024 till the date of
payment thereof as per the particulars of the claim at Exhibit-16 to the
plaint and defendant be ordered and directed to pay to the plaintiff Rs.
30,00,000/- @ Rs.1,00,000/- per day being the pre-estimated liquidated
damages under clause 5.4 of the registered leave and license agreement
from the date of the termination of the agreement i.e. 21/12/2023 till
the date of filing of the suit i.e. 22/1/2024 as per Sr. No.III of the
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particulars of the claim at exhibit-16 to the plaint and defendant be
ordered and directed to pay to the plaintiff a sum of Rs.1,00,000/- per
day being pre-estimated liquidated and agreed damage under clause 5.4
of registered leave and license agreement from 23/1/2024 till payment
thereof as per Sr. No. III of the particulars of the claim at Exhibit-16 to
the plaint and defendants be ordered and directed to pay to the plaintiff
a sum of Rs.7,24,07,160/- being pre-estimated liquidated damages
under clause 12.2 of the registered leave and license agreement towards
license fees for unexpired locking period i.e. from 1/2/2024 till
31/6/2026 as per Sr. No. IV of the particulars of the claim at exhibit-16
to the plaint and that amount as and when deposited by the defendant
pursuant to the order of this Court plaintiff be permitted and / or
allowed to withdraw the same without prejudice to its rights and
contentions of the above suit on such terms and conditions as this
Court may deem fit and proper.
7. It appears that the defendant has filed reply to Exhibit-14 on
08/04/2024 and thereafter the plaintiff has filed affidavit in rejoinder
dated 15/02/2025. On 13/03/2025, this Court has heard both the sides
and passed the Order below Exhibit-14 and thereby has partly allowed
and defendants were directed to deposit arrears of license fee from
August 2023 till March 2025 amounting to Rs.2,76,96,605/- alongwith
the 14% interest in the court within one month from date of the order
dated 13/3/2025 and defendant is also directed to continue to deposit
license fee as per clause No. 4. 1 of the registered leave and license
agreement from April 2025, on or before 10th day of each month till
disposal of the suit.
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8. The plaintiff has stated that, the defendants failed and neglected
to comply with the Order of this Court dated 13/3/2025 passed below
Exhibit-14 and failed to deposit Rs.2,76,96,605/- with interest @ 14%
in this Court within one month from the date of the order dated
13/3/2025 and defendant is also directed to continue to deposit License
fees as per clause no. 4.1 of the Leave and License agreement from April
2025 on or before 10th day of each month, till disposal of the suit.
9. The plaintiff has stated that, the defendants have not deposited
the amount as per Order dated 13/3/2025 and defendants failed to
comply with the order and direction of this Court dated 13/3/2025
passed below Exhibit-14 in L.E.& C. Suit No. 8 of 2024. The plaintiff has
stated that, the defendant is defying Order of this Court dated
13/3/2025 passed below Exhibit-14 during the pendency of the suit
and commits default in respect of the order dated 13/3/2025 and
contravenes such order and commit breach of order of this Court and
therefore it is just, necessary and proper to strike out the defense of the
defendant as to defendant is in default or contravention and breach
committed by the defendant.
10. The plaintiff has stated that, the defendant is willingly,
knowingly flouting and disobeying the Order and direction of this Court
dated 13/03/2025 passed below Exhibit-14 and therefore the defense
of the defendants is required to be struck of and suit filed by the
plaintiff be decreed and defendants be restrained from further entering
upon, remaining upon, in the suit premises till the defendant comply
with the Order and direction of this Court dated 13/3/2025 passed
below Exhibit-14.
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11. The plaintiff has stated that, the defendant is in default and
contravention and breach of the aforesaid order and defendant is
defying the order of this Court and committing breach and therefore, it
is just, necessary and proper that due to default and contravention and
breach committed by the defendant to strike out the defense of the
defendant.
12. The plaintiff has further stated that, it is therefore just, necessary
and proper in the interest of natural justice, equity and good conscience
that this Court be pleased to pass the order in favour of the plaintiff and
against the defendant as to defendant is defying the order and direction
of this Court and committing breach of the order and defendant is in
default and contravention and breach committed by the defendant
pursuant to the Order dated 13/3/2025 and therefore the defendant be
restrained by order and injunction of this Court from entering upon,
remaining upon in the suit property until the defendant comply the
Order and direction of this Court dated 13/03/2025 passed below
Exhibit-14 .
13. The plaintiff has stated that, if reliefs as prayed for is not granted
in favor of the plaintiff then he will suffer irreparable loss, harm,
damage, injury, prejudice and great hardship will be caused to the
plaintiff which cannot be compensated in terms of money, and if the
reliefs as prayed for are granted, no such harm or prejudice would be
caused to the defendant. The balance of convenience is also in favour of
the plaintiff. The plaintiff has stated that, in the interest of natural
justice, equity and good conscience it is therefore just, necessary and
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proper that this interim application taken out the plaintiff be allowed
and made absolute with costs.
14. Along-with the application, the plaintiff has filed on record the
interim application below Exhibit-14 and Order passed below it. The
plaintiff has also filed on record letter dtd. 11.04.2025, e mail and letter
dtd. 13.04.2025.
15. Upon hearing both the sides and on going through the pleadings,
citations and documents on record, it appears that, for passing Orders
under Order XV-A, there are various requirements which has to be
followed. In accordance with the provisions and rule cited, it appears
that, Key aspects of striking off a defense are as follows :
(i) Discretionary Power: The power to strike off a defense is a
discretionary one, meaning the Court has the authority to decide
whether to exercise it or not.
(ii) Exceptional Circumstances: This power is typically exercised in
exceptional cases where there is clear evidence of contumacious
conduct, willful disregard of Court orders, or deliberate attempts to
obstruct the trial.
(iii) Willful Default: The default (failure to comply with Court Orders)
must be willful, meaning intentional and not due to accident or
inadvertence,
(iv) Last Resort: Striking off a defense is considered a last resort
when other measures to ensure compliance with Court Orders have
failed.
(v) Not Automatic: Striking off a defense is not an automatic
consequence of every instance of non-compliance. The Court must
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carefully consider the circumstances and the nature of the default.
16. The situations where a defense might be struck off:
(i) Failure to comply with a discovery order: If a defendant fails to
produce documents as ordered by the Court, and the failure is willful
and unjustified, the Court may strike off their defense.
(ii) Disobedience of court orders: If a defendant deliberately disobeys
a Court Order, such as, an Order to pay maintenance or rent, the Court
may strike off their defense.
(iii) Frivolous or vexatious defenses: If a defendant raises a defense
that is clearly without merit and intended to delay or obstruct the
proceedings, the Court may strike it off,
(iv) Effect of striking off the defense: No opportunity to present case:
The defendant is essentially barred from presenting their case, meaning
they cannot present evidence, call witnesses, or argue their case on the
merits.
(v) Decree may follow: If the defense is struck off, the Court may
proceed to pass a decree against the defendant, as they have not been
able to put forward their side of the story.
17. Legal Principles:
Section 151 of the CPC:
This section grants the court inherent power to make such orders
as may be necessary to ensure the ends of justice or to prevent abuse of
the process of the court.
Order VI Rule 16 of the Code of Civil Procedure, 1908 :
This rule allows the court to strike out pleadings that are
scandalous, frivolous, or vexatious.
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Order XV Rule 5 of the Code of Civil Procedure, 1908 :
This rule deals with striking off defense for failure to deposit
admitted rent in certain cases. In essence, striking off a defense is a
serious punitive measure reserved for cases of serious default or
misconduct by the defendant, and it has a significant impact on the
defendant's ability to defend the suit.
Striking off defense under the Code of Civil Procedure (CPC)
"Striking off defence" or "defence struck off" refers to a Court's action in
Civil Proceedings in India, based on the Code of Civil Procedure (CPC),
where a defendant's ability to present their defense in a law suit is
restricted or removed due to specific defaults or non-compliance with
court orders.
When can a defense be struck off?
The Court's power to strike off a defense is discretionary and
typically exercised as a last resort in specific circumstances, such as : -
Willful and intentional default or contumacious conduct:
This includes deliberate attempts to disregard or disobey Court
Orders, particularly those related to discovery, interrogatories and
production of documents.
Failure to comply with Court Orders: Specifically, Order XI, Rule
21 of the CPC allows for striking off of a defense, if a party fails to
comply with an order to answer interrogatories or for the discovery or
inspection of documents.
Failure to deposit admitted rent (in specific cases): In some
jurisdictions and types of suits (like eviction suits), failure to deposit
admitted rent can also lead to the striking off of the defense.
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18. In support of his contentions, the learned Advocate for the
plaintiff has relied on following authorities :-
[1] Anandi Devi vs. Om Prakash reported in 1987 (Supp)
SCC 527
[2] Mr. Venugopal Krishnamurthy and anr. vs. Smt. M.
Tejaswini W/o. Sri. S. R. Satyanarayana Raju Writ
Petition No. 21479 of 2024 (GM-CPC) Order dtd. 08th
July, 2025 Karnataka High Court at Bengaluru
19. In support of his contentions, the learned Advocate for the
defendant has relied on following authorities :-
[1] Radheshyam vs. Tuljaprasad & Ors. reported in AIR
2007 Bombay 83
[2] Mahendranath vs. Miss Nalini Vallabhdas Shah
reported in[1986 Mah. R.C.J 494]
[3] Smt. Anita M. Barreto Vs. Abdul Wahid Sanaullah
reported in1985(1) Bom. C. R. 130
[4] M/s. Paradise Industrial Corpn. vs. M/s. Kiln Plastics
Products reported in AIR 1976 Supreme Court 309
[5] Pirubhai Ramjubhai Mamomedan Vs. Trikmlal
Nanjibhai - reported in XI- 1969 All India Rent Control
Journal 1006 Gujarat High Court
20. As per the rule cited in case of Radheshyam Vs. Tuljaprasad &
Ors., the specific provision is required for striking off defence.
As per
this authority, the provision of Order XV-A would come into play, only
when there is prima-facie evidence to show that, the rent or licence fees
was agreed between the parties and a particular sum could be charged
as liability. In view of the same, the learned Advocate for the defendant
has pointed out the defence taken by them more particularly Para No. 2.
He has read-over the same and demonstrated the lapses committed by
the plaintiff in following the terms of licence. The said defense is that,
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the defendant has denied all the contentions taken by the plaintiff in
plaint and in his written statement made out different defence in
pursuance of Leave and Licence Agreement executed between the
parties, more particularly in Para Nos. 2(a) to 2(w) of his written
statement. In support of the defence, the defendant has not filed any
proceedings. Hence, the fact remains that, the defence cannot be
considered at this stage, when no proceedings are filed. As per the rule
cited in case of Radheshyam Vs. Tuljaprasad & Ors., this defence has to
be taken into consideration while considering the present application.
Moreover, both the parties are relying on the execution of Leave and
Licence Agreement and conditions mentioned in it. It is the liability of
both the parties to follow the conditions mentioned in it. As discussed
supra, the said Agreement is not expired, but has been terminated by
the plaintiff after issuance of the notice.
21. As per the rule cited in case of Mahendranath, it has been held
that,
the Order of striking of defence is a discretionary measure to be
exercised sparingly.
22. As per the rule cited in case of Smt. Anita M. Barreto’s, it has
been held by the Hon’ble Bombay High Court that,
while passing the
Order of making payment, the Court may give such a direction
regarding the consequences of the non-compliance with the order
passed earlier at a later stage also, if it does not give that direction
simultaneously with the passing of the order relating to the payment to
be made.
23. As per rule cited in case of M/s. Paradise Industrial Corporation
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by the Hon’ble Supreme Court, discussed about consequences of
“defence stuck off” and “ defence struck out”.
24. As per rule cited in case of Pirubhai, it has been held that,
“Before
a tenant is deprived of his right to defend, there must be clear
indication that the Court was going to exercise the power available to it
under this provision because of his failure to comply. The very nature of
the consequences calls for notice to the tenant that his failure to comply
with the Orders of the Court would entail the penalty. It has been
further held that, the Court will not strike out the defence unless
previous to that striking out a direction has been made as contemplated
by the section. In absence of a previous direction, an order striking out
the defence would be bad in law.”
25. In view of the rule cited by the Hon’ble Apex Court and the
Hon’ble Bombay High Court and other High Courts, it appears that, the
compliance has to be made strictly before passing the Orders of striking
off defence. As per the rules cited in various authorities, it has to be
taken into consideration from the pleadings of the parties, whether
there is prima-facie evidence to show that, the rent or licence fees was
agreed between the parties and a particular sum could be charged as a
liability. From the pleadings of the plaintiff in the Plaint, it appears
that, the plaintiff has relied on the Leave and Licence Agreement
executed between the parties, which is still in existence but was
terminated by the plaintiff. On going through Para No.3 to Para No. 27
of the plaint, there are various discussions made with regard to the
Leave and License Agreement and the liabilities on both the sides. On
going through the said Leave and License Agreement, it appears that,
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the liability is cast on both the parties to follow the said Agreement.
Both the parties have relied on various Clauses of the Leave and License
Agreement. In accordance with the claim of plaintiff, the plaintiff has
prayed for passing the Decree to quit and vacate the suit premises
against the defendant. The plaintiff has also claimed various amounts
towards license fee, liquidated damages etc. in accordance with the
Clauses in the Leave and License Agreement.
26. The Learned Advocate for the defendant has argued that, as per
the Leave and Licence Agreement, the duty is cast upon the plaintiff to
give the suit premises in habitable condition. The learned Advocate for
the defendant further argued that, the suit premises is in dilapidated
stage and required extensive repairs, renovation, equipping and
furnishing etc. to commence the business. It is further stated that, the
plaintiff assures to make the suit premises in habitable condition, but
has failed to do so. Subsequent thereto, the defendant has carried out
the said works at the cost of plaintiff. The plaintiff has not reimbursed
the said amount besides the cost of repair and renovation of the lift. The
defendant therefore, has stated that, the said amount has to be
adjusted, set off from the licence fee. It is further stated that, the
plaintiff has induced the defendant to spend large amount on making
the premises in good condition and fully furnishing the same. The
plaintiff has assured that, he will handover all the licences in respect of
restaurant and bar of the Hotel, having rooms for lodging. The plaintiff
deliberately did not hand over the said licences, resulting into heavy
losses of the defendant. It is further stated that, the plaintiff has
handed over the defendant a large portion of the Ground Floor premises
which has been illegally constructed. As the said construction is illegal,
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the defendant is unable to obtain a fresh licence of the said premises.
The plaintiff has also failed to give inspection of the sanctioned Plan.
The defendant has further denied the liability for payment of an amount
more particularly described in letter dtd. 26.12.2023. It appears that,
learned Advocate for the defendant has argued that, the requirements
for running the Restaurant cum Bar on the premises of the suit property
has not been given by the plaintiff to defendant. After the demand, the
Partner of the plaintiff agreed to hand over all the licences and permits
to the defendant in respect of the businesses of the plaintiff that were
earlier carried out by the plaintiff from the suit premises. The
defendant in Para No.2 of the written statement has enumerated various
lapses from the side of plaintiff, which are described more particularly
in Para Nos. 2(a) to 2(w). From the pleadings made by the plaintiff in
Plaint and the reply read-over in the Written Statement, it appears that,
the defendant has enumerated various lapses which has not been
complied by the plaintiff. The said lapses are with respect to handing
over of permit, licences, repairs, renovations, claims made by the
defendant and various letters exchanged between the parties. From this
Para Nos. 2(a) to 2(w) of written statement, it appears that, the
defendant has prima-facie by pleadings has shown that, as per the
Leave and Licence Agreement, the duty is cast on both the parties to
obey the same. On going through the pleadings of plaintiff, it appears
that, the plaintiff has given details in Para No.5 with respect to Clauses
of Leave and Licence Agreement with respect to licence period, licence
fees, lock in period, utilities etc. The plaintiff has stated about the
payment of licence fees from the defendant. The plaintiff in further
pleadings has stated that, the defendant has made various payments for
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payment of licence fees etc. by cheques which were dishonoured.
Subsequently, there are exchange of communications by way of notices
between the parties. The plaintiff has claimed various amounts from the
defendant. The said amount has been denied by the defendant in their
written statement. From the pleadings and documents on record, it
appears that, there is dispute with respect to the payment of licence fees
and the work of repairs from the side of defendant.
27. As per the provisions of Order XV-A- The said provision reads
thus:
"Striking off defence on failure to deposit admitted rent, etc.-- (1) In any suit by a
lessor for the eviction of a lessee after the determination of his lease and for the
recovery from him of rent or compensation for use and occupation, the defendant
shall, at or before the first hearing of the suit, deposit the entire amount admitted
by him to be due together with interest thereon at the rate of nine per cent per
annum and whether or not he admits any amount to be due, he shall throughout
the continuation of the suit deposit the monthly amount due within a week from
the date of its accrual and in the event of any default in making the deposit of the
entire amount admitted by him to be due or the monthly amount due as
aforesaid, the Court may subject to the provisions of Sub-rule (2) strike off his
defence.
Explanations 1 to 3 x x x x (2) Before making an order for striking off
defence, the Court may consider any representation made by the defendant in
that behalf provided such representation is made within ten days of the first
hearing or of the expiry of the week referred to in Sub-section (1) as the case
may be.(3) The amount deposited under this rule may at any time be withdrawn
by the plaintiff: Provided that such withdrawal shall not have the effect of
prejudicing any claim by the plaintiff disputing the correctness of the amount
deposited : Provided further that if the amount deposited includes any sums
claimed by the depositor to be deductible on any account the Court may require
the plaintiff to furnish security for such sum before he is allowed to withdraw the
same."
Striking off a defense under the Code of Civil Procedure (CPC) means that a
defendant's ability to present their case is curtailed, essentially placing them in a
position as if they hadn't defended the suit at all. This is a serious step taken by
the court, usually when a defendant has willfully disregarded court orders or
engaged in contumacious conduct.
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From the above provisions, before passing the order, it has to be
ascertained that, there is prima-facie evidence to show that, rent or
licence fee was agreed between the parties and a particular sum
could be charged as liability. The next thing which has to be taken
into consideration is, whether for non-compliance of the order only,
the striking of defence order can be passed. For this purpose, Sub-
Rule (2) of Order XV-A is required to be considered. As per the Rule,
it is conspicuous that, before passing Order of striking of defence the
Court shall serve notice upon the defendant or his advocate to show
cause as to why the defence should not be struck off and the Court
shall consider any such cause shown in the Order to decide as to
whether the defendant should be relieved from the Order of striking
off defence. As per the Order 15-A, the word used is ‘may’ that
itself shows that, the Court has discretion to pass the Order subject
to the provisions of Sub-Rule (2) of striking of defence. As per
Clause 2 of Order 15-A, it is mandatory on the Court to consider any
such Clause, if shown in Order to decide, as to whether the
defendant should be relieved from the Order striking off defence. As
per the discussions made by the Hon’ble Bombay High Court in
Radheshyam’s case while calculating the quantum of rent it has to be
determined quantum of rent agreed between them. Without
undertaking such exercise the Order of depositing of rent or licence
fees can be peremptory decree.
In view of above discussions, it appears that, the case of
plaintiff is totally based on Leave and Licence Agreement. The
defendant has denied all the contentions by filing the written
statement. As per the rule cited, it has to be first ascertained,
whether there is prima-facie evidence to show that, the rent or
licence fees was agreed between the parties and a particular sum
could be charged as a liability. Before passing the orders, the Court
has to consider the quantum of licence fees. It is further required
that, before passing the orders, though an utterly negligent or
defaulting litigant can not be encouraged for his negligence or
default, still normally a litigant should get the full opportunity to
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prosecute and defend the litigation, otherwise, it will cause mis-
carriage of justice. Technical formalities may not entitled into to
pivotal consent of administration of justice. It has to be taken into
consideration before passing the Order of striking of defence that,
the Order by which the defendant is directed to make the payment
of licence fee, it must consists of consequences of non-compliance of
the said Order. In the present set of facts, I have gone through the
Order passed below Exhibit-14 which does not contemplates any
consequences for non-compliance of the said Order. On going
through the Order passed below Exhibit-14, it appears that, my
learned Predecessor before passing the Order have considered the
duration of licence period and licence fee payable per month. My
learned Predecessor has calculated and came to the conclusion that,
the plaintiff at this initial stage is not entitled for the security deposit
and liquidated damages. Accordingly, it was ordered that the
plaintiff is entitled for Rs.2,76,96,605/- from August, 2023 to March,
2025 as only compensation amount as per Clause 4.1 of the
Agreement. This itself shows that, my learned Predecessor had
calculated, discussed and taken into consideration the entire
pleadings and documents of both the sides and came to the
conclusion and had partly allowed the said application. Hence, in
view of the rules cited by plaintiff as well as defendant, it appears
that, my learned Predecessor has calculated and taken into
consideration all the facts and circumstances of the case and
specifically ordered for awarding the compensation. This itself
shows that, the rule cited by the plaintiff as well as defendant is
complied. The application filed by the plaintiff for striking off
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defence itself is the notice as contemplated in Order 15 -A (2).
Hence, the compliance which has to be done before striking off
defence is totally complied by the plaintiff.
28. In the rule cited in case of Paradise Industrial Corporation, the
Hon’ble Supreme Court has discussed about the phrases ‘defence struck
off’ or ‘defence struck out’. Even when the defence is struck off the
defendant is entitled to appear, cross-examine the plaintiff’s witnesses
and submit that even on the basis of the evidence of the plaintiff a
decree can not be passed against him, whereas if it is ordered in
accordance with Section 11(4) that he shall not be entitled to appear in
or defend the suit except with the leave of the Court he will be placed at
greater disadvantage. Further, the Hon’ble Supreme Court has given
detailed discussion about the phrases that, “defence struck off” or
“defence struck out”.
29. As per rule cited in case of Pirubhai Ramjubhai, it has been
specifically held hat, the Court will not strike out the defence unless
previous to that striking out a direction has been made as contemplated
by the section. In absence of previous direction an order striking out the
defence would be bad in law.
30. As per the rule cited in case of Anandi Devi, it appears that, the
same are under the provisions of Order XV Rule 5 of the C.P.C. The rule
cited in this authority is totally applicable in the facts of the present
case.
31. As far as the rule cited in Venugopal’s case, the rule cited in this
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authority is totally applicable in the facts of the present case.
32. At the time of passing of order, the learned Advocate for
defendant has filed application below Exhibit- 55 stating that, he wish
to file on record Judgment and Citation which may be taken on record
and the same may be considered at the time of passing of order. On this
application, the plaintiff has filed detailed say and stated that the
present application is filed to prolong the matter and harass the
plaintiff. On hearing both the sides, the citation was taken on record.
The learned Advocate for the defendant has argued with respect to the
citation and relevancy of the judgment applicable in the present set of
facts. The learned Advocate for the plaintiff has submitted that, the
present citation is not at all applicable in the present matter and can not
be considered while passing the present order.
33. I have gone through the rule cited in case of Bimal Chand Jain vs.
Gopal Agarwal reported in AIR 1981 Supreme Court 1657. In this
judgment, more particularly in Para No.6, the Hon’ble Supreme Court
has specifically held that,
“ 6. It seems to us on a comprehensive understanding of Rule
5 of Order XV that the true construction of the Rule should be
thus. Sub-rule (1) obliges the defendant to deposit, at or
before the first hearing of the suit, the entire amount
admitted by him to be due together with interest thereon at
the rate of nine per cent per annum and further, whether or
not he admits any amount to be due, to deposit regularly
throughout the continuation of the suit the monthly amount
due within a week from the date of its accrual. In the event of
any default in making any deposit;
"the court may subject to the provisions of sub-rule (2)
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strike off his defence". We shall presently come to what this
means. Sub-rule (2) obliges the court, before making an order
for striking off the defence to consider any representation
made by the defendant in that behalf. In other words, the
defendant has been vested with a statutory right to make a
representation to the court against his defence being struck
off. If a representation is made the court must consider it on
its merits, and then decide whether the defence should or
should not be struck off. This is a right expressly vested in the
defendant and enables him to show by bringing material on
the record that he has not been guilty of the default alleged or
if the default has occurred, there is good reason for it. Now, it
is not impossible that the record may contain such material
already. In that event, can it be said that sub-rule (1) obliges
the court to strike off the defence? We must remember that an
order under sub-rule (1) striking off the defence is in the
nature of a penalty. A serious responsibility rests on the court
in the matter and the power is not to be exercised
mechanically. There is a reserve of discretion vested in the
court entitling it not to strike off the defence if on the facts
and circumstances already existing on the record it finds good
reason for not doing so. It will always be a matter for the
judgment of the court to decide whether on the material
before it, notwithstanding the absence of a representation
under sub- rule (2), the defence should or should not be
struck off. The word "may" in sub-rule (1) merely vests power
in the court to strike off the defence. It does not oblige it to do
so in every case of default. To that extent, we are unable to
agree with the view taken by the High Court in Puran Chand
(1981 AllLJ 82)(supra). We are of opinion that the High Court
has placed an unduly narrow construction on the provisions
of clause (1) of Rule 5 of Order XV.
34. In view of the rule cited in this authority, it is not applicable in
the present matter. The word ‘may’ in Sub-Rule (1) merely vest powers
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to the Court to strike off the defence. From the discussions made
above, it appears that, only for the non-payment of licence fees as
ordered, the defence can not be struck off. The defence can only be
struck off after compliance of the various provisions contemplated
under law and rules made in various authorities.
35. The plaintiff has stated that, the defense of the defendant is
required to strike out for defying the order and committing breach and
contravention to the order and direction of this Court dated 13/3/2025
passed below exhibit-14. The plaintiff has stated that, the defendant
themselves, their officials, servants, agents, hirelings, and / or any
person or persons claiming through or under the defendant be
restrained by order and injunction of this Court from entering upon,
remaining, upon and / or occupying the portion of the suit building i.e.
Ground Floor consisting of restaurant, 3rd Floor and 4th floor consisting
of rooms for lodging purpose along with the roof top premises of the
suit building known as Hotel Imperial Palace (I) situate at Telly Park
Road, Near Criticare Hospital, Andheri East, Mumbai 400069, until the
defendant comply with the order and direction of this Hon'ble Court
dated 13/3/2025 passed Order below Exhibit-14 in L.E. & C. Suit No.8
of 2024. The plaintiff has stated that, it is also just, necessary and
proper that defendant be restrained by order and injunction of this
Court from removing or taking away article, things, belongings,
phernafelia lying and being in the suit property i.e. ground floor
consisting of restaurant, 3rd and 4th floor consisting of rooms for
lodging purpose along with the roof top premises of the suit building
known as Hotel Imperial Palace (I) situate at Telly Park Road, Near
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Criticare Hospital, Andheri East, Mumbai - 400069, in any manner
whatsoever in nature.
36. The plaintiff has stated that, after passing the Order dated
13.03.2025 the defendant with ulterior motive, malafide intention
started removing goods, articles, things, fixtures, belongings and
phernphelias from suit property and on 11/04/2025 defendant has
removed certain goods from the rooftop such as; 1) Cane 2 Seat Sofas
13 Nos. 2) Cane Single Seat Sofa - 5 Nos. 3) Cane Round Tables Side 5
Nos. 4) Toweracindoor 4 Nos. 5) - Tower Ac Outdoor - 4 Nos. 6) Sofa
Pillows White Sofas 7) White Sofas 8) Cane Coufee -1 9) Cane Center
Table 1 Rectangular 10) Cane Side Table Round Small, given letter
dated 11.04.2025 to the plaintiff without permission, knowledge,
consent of the plaintiff and behind the back of plaintiff illegally and
unlawfully signed by Miraa Chandan director of the plaintiff. The letter
dated 11.04.2025 of defendant is annexed at Exhibit-’B’ with the
application.
37. The plaintiff has stated that, again on 13.04.2025 defendant send
email that defendant are Siffting furniture, fixture from the suit
property as per list mentioned in the email dated 13.04.2025 and
illegally, high handly removed goods i.e. 1) Cane Square Tables 4 Nos.
2) Cane Chairs – 16 Nos. 3) Cane Bar Chairs - 10 Nos. 4) Cane Semi
Circle Table -1 5) Monsoon Curtain - 19 Pc 6) Wine Chiler -3nos. 7)
Long Pipes Shamiana-21nos. 8) Grill-15nos. 9) Sofa Pillow -9 Pc Pkp
2nos. 10) Bar Basin-1 11) Wash Basin Kitchen -1 12) Camode -02nos.
13) Basin - 02nos. 14) Tissue Dispenser - 04nos. 15) Soap Dispenser - 2
Nos. 16) Couplings, Jetspray,Plate Flush Tank All 2 Pcs White Sofa 1)
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Cane - 3 Seaetr -Nos. 12) Cane 2 Seater - 2nos. 3) Cane - Single 1. The
defendant email dated 13.04.2025 is annexed at Exhibit-’C’ with the
application..
38. The plaintiff has further stated that, it is therefore just, necessary
and proper that pending the hearing and final disposal of the suit the
defendant be restrained by order and injunction of this Court from
entering upon, remaining upon and carrying on business of restaurant,
lodging& boarding in the suit property i.e. Hotel Imperial Palace (I),
situated at Ground Floor consisting of Restaurant, 3rd and 4th floor
consisting of rooms for lodging purpose along with roof top of the suit
building known as Hotel Imperial Palace (I) situated at Telly Park Road,
Near Criticare Asia, Andheri (East), Mumbai 400069 until the
defendant comply with the order and direction of this Court dated
13.03.2025 passed order below Ex.-14 in L.E. & C. Suit No. 8/2024.
39. In support of the contentions made with respect to grant of
temporary injunction, it appears that, the prayers made in the
application has to be adjudicated and decided at the time of final
hearing. The prayers made in the present application with respect to
injunction amounts to granting final relief without there being any
adjudication, evidence and supported by the documents. In view of the
same, the prayers of injunction can not be granted at this initial stage.
As far as the injunction which is claimed with respect to Prayer Clause
(c) is concerned, it appears that, it is prayed beyond the subject matter
of the present suit. It appears that, the case of the plaintiff is depending
on Leave and Licence Agreement which is still in existence and plaintiff
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has issued the termination notice. For grant of this prayer, the parties
has to lead their evidence and without adjudication, at this initial stage,
the said relief can not be granted. In view of the above discussion, the
plaintiff is entitled for striking off defence, but is not entitled for grant
of temporary injunction. In view of the same, I pass the following
order :-
O R D E R
1. The application (Exh.46) is partly allowed.
2. The defence of the defendant is strike out for defying the order
and committing breach and contravention to the Order and direction of
this Court below Exhibit-14 dtd. 13.03.2025.
3. The prayer for grant of temporary injunction is rejected.
4. No order as to costs.
(P. P. Naigaonkar)
Judge, C.R. No. 38 (B.B.)
Date : 08.09.2025 Small Causes Court, Mumbai
Order Dictated on : 08.09.2025
Order Typed, checked and signed on : 09.09.2025
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