Interim Order 1

Order Details: Order on Exhibit
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(CNR No.MHSCA3-000175-2024)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.11
IN
L. D. SUIT NO.15 OF 2024
M/s. Arma Hospitality Pvt. Ltd. ... Plaintiff
Versus
1. M/s. Disha Apartment CHS Limited
and others ... Defendants
Shri. Ashok M. Saraogi, Ld. Advocate for the plaintiff.
Coram : Shri. S. N. Godbole, Judge.
C.R.No.34 (BB).
Date : 15.03.2025.
ORAL ORDER :-
1. This application is filed by the plaintiff for relief of
temporary injunction to restrain the defendants, their agents and
servants from in any manner creating any third party rights over the
suit premises.
2. Perused the application. Heard Ld. Advocate for the
plaintiff.
3. The brief facts of the present application is as under:-
The plaintiffs are the company incorporated under the
provisions of the Companies Act. Defendant No.1 is the society
incorporated under the provisions of the Maharashtra Co-operative
Societies Act. Defendant No.2 is the Chairman of defendant No.1-
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society. Defendant No.3 is the family member of defendant No.2.
Other seven family members of the defendant No.2 are also signatory
to the Agreement. However, their names and addresses are not
known to the plaintiff. Therefore, they are not made party.
But,plaintiff shall add their name and actual addresses as and when
the same is available to the plaintiff.
4. The defendants are the owners in respect of a building
consisting of ground plus seven floors consisting of 2 BHK flats on
each of the floors. There are identical two flats situated on each of
the floors being Flat Nos.101, 102, 201, 202, 301, 302, 401, 402,
501, 502, 601, 602, 701 and 702 having complete control/access to
the entry, exit gates, building compound, staircase, Lifts, water tanks,
car parking and terrace in respect of the building known as Disha
Apartment, bearing CTS No.F/1538 of Village Bandra, 1st Floor, Khar
(W), Mumbai-400 052 having area about 12000 sq.ft. (The said
premises are herein after referred to as suit premises for
convenience).
5. The MOU and Leave and Licence Agreement between
the parties are valid in subsistence and till date, the same has not
been terminated by either of the parties. The plaintiff has paid
necessary cash amount for the purpose of renovation of the suit
building to the tune of Rs. 70,00,000/-and in such manner, the
plaintiffs have paid a total sum of Rs. 3,10,00,000/- to the defendants
for renovation. However, the plaintiffs have not been put in
possession of the suit building. On the contrary, it has been learnt by
the plaintiffs that now, because of the renovation made in respect of
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the suit building, the value and the monthly compensation of the
same have increased substantially and accordingly, the defendants
are trying to negotiate with some third party for letting out the said
premises. Hence, this application.
6. On the contrary, the defendants appeared in this matter,
but failed to file their written statement and reply to the present
application. Hence, present application has been proceeded without
say and argument against the defendants vide order passed below
Exh.11, dated 09.11.2024 and 01.03.2025 respectively.
7. In the context of aforesaid contention of the plaintiff, the
following points arise for determination to which, I have given my
findings together with the reasons thereon as under:-
Sr. Nos. Points Findings
1. Whether plaintiffs have made out
prima facie case ?
In affirmative.
2. Whether balance of convenience lies in
favour of the plaintiffs ?
In affirmative.
3. Whether plaintiffs would suffer
irreparable loss, if application is
rejected ?
In affirmative.
4. What order ? As per final order.
: R E A S O N S :
AS TO POINT NOS. 1 TO 3:
8. The Ld. Advocate for plaintiffs submitted that the
defendants are the owner of the suit premises. The plaintiffs are
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licensees of the defendants in respect of the suit premises as per
Leave and Licence Agreement dated 07.09.2022. Defendant No.2
represented that he shall carry out all the necessary interior works as
required for the plaintiffs for the purpose of conducting their
activities from the said premises. Accordingly, the plaintiffs have paid
Rs.2/- Crores as and by way of security deposit with a monthly
license fees of Rs.9/- Lakhs in the manner as stated in the
Memorandum of Understanding signed with the parties being MOU
dated 10.08.2022.
9. The learned advocate for the plaintiffs further submitted
that the, plaintiffs have paid necessary cash amount for the purpose
of renovation of the suit building to the tune of Rs. 70,00,000/-and in
such manner, the plaintiffs have paid a total sum of Rs. 3,10,00,000/-
to the defendants for renovation. However, the plaintiffs have not
been put in possession of the suit building. On the contrary, it has
been learnt by the plaintiffs that now, because of the renovation
made in respect of the suit premises, the value and the monthly
compensation of the same have increased substantially and
accordingly, the defendants are trying to negotiate with some third
party for letting out the said premises. Therefore, the plaintiffs have
grave apprehension that the defendants will create third party
interest in favour of third party in respect of the suit premises. Thus,
he prayed to allow the application by restraining defendants
temporarily from creating any kind of third party interest in suit
premises.
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10. Needless to mention here that the relief of temporary
injunction is an equitable relief. Therefore, it is the duty of the
plaintiff to show prima facie case, balance of convenience in their
favour and irreparable loss, if the application is not allowed. Unless,
these ingredients are proved, the plaintiff is not entitled for the
temporary injunction. It has to be borne in the mind that there should
be the serious disputed question between the parties. The
interference by the Court in the said question or dispute should be
necessary. In that case only, such application for temporary
injunction can be allowed.
11. Perusal of copy of MOU, dated 10.08.2022 appears that
it is executed between the plaintiff and defendant No.2 in respect of
the suit building and it is agreed that defendants shall execute
register leave and licence agreement in respect of said premises for
the period of 5 years with effect from 1.12.2022 and plaintiffs shall
pay a monthly license fees of Rs. 9/- Lakhs for initial period of 2
years which will have an increment of 5% for every consequent year.
It also appears from the copy of receipt and two cheque that
defendant No.2 has received the sum of Rs.2/- Crores by way of
cheque for Rs.1/- Lakh each drawn on HDFC bank, Malad (w) Branch
towards the interest free security deposit.
12. It appears from the copy of registered leave and license
agreement dated 07.09.2022 that defendant No.1 Society let out the
suit premises to the plaintiffs for a monthly license fees of Rs.9/-
Lakhs as stated in MOU dated 10.08.2022 for the period of 60
months since 1st December 2022. It appears from the minutes of
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special general meeting dated 03.08.2022 that defendants and other
owners of the suit premises passed resolution about letting out the
suit premises to the plaintiffs on leave and license agreement.
Therefore, considering minutes book, MOU and leave and licence
agreement, it is clear that the defendants have let out the suit
premises to the plaintiffs on leave and license basis. Thus, it can be
safely said that there is relationship between the defendants and the
plaintiffs as licensor and licensee in respect of the suit premises.
Thus, in such circumstances, the only question remains as to whether
there is apprehension that the defendants are trying to create any
third party interest in the suit premises.
13. It is to be noted that the plaintiffs have not filed any
prima facie documentary evidence to show interest of the defendants
to create third party interest. However, it is the specific allegation on
the part of the plaintiffs on the affidavit that the plaintiffs have not
been put in possession of the suit building and due to renovation, the
value and the monthly compensation of the same have increased
substantially and accordingly, the defendants are trying to negotiate
with some third party for letting out the said premises. Thus, it
cannot be overlooked that the plaintiffs have filed the present
application with the specific allegation and claimed the temporary
injunction to restrained the defendants from creating third party
interest. It is to be noted that the defendants have not challenged the
contentions made in the application. Therefore, the contentions
about the apprehension in the mind of plaintiffs that the defendants
likely to create third party interest can be accepted prima facie.
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14. Considering the above discussion, it is clear that the
plaintiffs have shown prima facie that the defendants might create
third party interest in the suit premises. Thus, prima facie case is
made out. Balance of convenience lies in favour of plaintiffs.
Irreparable loss will be caused to the plaintiffs, if the said prayer is
not allowed as plaintiffs have not been put in possession of the suit
premises. Further, it is settled that the owner can not be restrained
from transferring his own premises. However, considering the facts
and circumstance of the present case, if the defendants are restrained
from creating third party interest in the suit premises to the extend of
frustrating the leave and licence agreement dated 07.09.2022, no
such irreparable loss will be caused to defendants. Rather allowing
the said prayer will reduce the chances of multiplicity of the
proceeding. No harm will be caused to defendants, if the status of
the suit premises remains intact. Therefore, I answer point Nos.1 to 3
in affirmative.
AS TO POINT NO.4:
15. In view of my finding to point Nos.1 to 3 in affirmative,
the plaintiffs are entitled for the injunction restraining the defendants
from creating third party interest in the suit premises. Hence, in
answer to point No.4, I proceed to pass the following order:-
ORDER
1. Application is allowed.
2. The defendants or anyone on their behalf are
temporarily restrained from creating third
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party interest in the suit premises to the extend
of frustrating the leave and licence agreement
dated 07.09.2022 till the subsistence of the
said leave and agreement dated 07.09.2022 or
till decision of the suit whichever is earlier.
3. Costs in cause.
Place : Mumbai (S. N. Godbole)
Date : 15.03.2025 Judge,C.R.No.34(BB).
Order Dictated & Typed on : 15.03.2025
Order Checked & Signed on : 17.03.2025
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