Interim Order 3

Order Details: Order on Exhibit
Pdf Text: : 1 :
IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
ORDER BELOW EXHIBIT – 11
in
L.E. & C. Suit No. 16 of 2023
[ CNR NO. MHSCA-3000188-2023 ]
1. Mr. Alok Yudhister Nangia & Anr. … Plaintiffs
Versus
Mr. Vishal B. Sonawane … Defendant
Jikesh M. Shah,Ld. Advocate for the Plaintiffs.
A.A. Mirza & Associates, Ld. Advocate for the Defendant.
Coram : Smt. Nutan S. Saraf
Judge,
C.R. No. 40,
Date : 04th October, 2023
:: ORDER ::
This is an application filed by plaintiffs under order XXXIX,
Rule 1 and 2 of Code of Civil Procedure, 1908 for grant of injunction,
pay and/or deposit arrears of compensation from 15/01/2021 till
15/03/2023 aggregating to Rs.1,40,00,000/- and to pay and/or deposit
in this court the arrears of compensation @ Rs. 7,00,000/- per months
from 15/03/2023 till the final decision in the present suit by defendant
and appointment of Court Receiver under order XL, Rule 1 of Code of
Civil Procedure, 1908 against the defendant.
The facts narrated in the application are as below :
2. Plaintiff has filed suit for eviction and compensation with
regard to the license allegedly granted in favour of the defendant. It is
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contention of the plaintiffs that Leave and License Agreement was
entered in respect of commercial premises viz. Tenement No.B-39/156,
situated at Siddha Co. Housing Society Ltd., Siddharth Nagar,
Goregaon West, Mumbai 400 104 admeasuring 2000 sq.ft on the
ground floor and 2000 sq.ft on the first floor between plaintiffs and
defendant. The same is the subject matter of the present suit, therefore,
it is termed as 'suit premises'. The plaintiffs have submitted that leave
and license agreement dated 19/01/2021 which commenced from
15/01/2021 and expired in 14/01/2022 has expired long back and also
terminated to avoid any technical hitch by their advocates Notice dated
25/07/2022. After the issuance of termination notice dated
25/07/2022 and rejoinder letter dated 30/08/2022 and filing of the
affidavit in reply in notice of motion taken out by defendant in SC Suit
No.1588 of 2022, the defendant approached the plaintiffs and
requested to grant him four months time i.e. November-December
2022 to vacate the suit premises and to clear all the outstanding dues.
In order to avoid expensive litigation and in order to settle the dispute
amicably with the not filed the suit after the issuance of termination
notice believing the assurance given by the defendant.
3. The plaintiffs further stated that the defendant
surreptitiously filed L.D. Suit No.152 of 2022 which is pending in this
Hon’ble Court and also have taken out injunction application for
obtaining ad interim and interim reliefs to be used against him as an
arm-twisting tactics. The defendant has not approached this court with
clean hands and is guilty of playing fraud on this Hon’ble Court as well
as on plaintiffs. The defendant is guilty of suppressing various material
facts and documents from this court in the suit filed by the defendant.
The plaintiffs further stated that defendant is in arrears of monthly
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compensation as agreed in the leave and license agreement dated
19/01/2021 from 15/01/2021 till 14/01/2022 @ Rs.3,50,000/- per
month X 12 months = Rs.42,00,000/- and from 15/01/2022 to
15/03/2023 i.e. 14 months @ Rs.7,00,000/- as per clause No.18 of the
registered leave and license agreement dated 19/01/2021 which comes
to Rs.98,00,000/- and in all aggregating to Rs.1,40,00,000/- (One
Crores Forty Lakhs only). The defendant has always kept plaintiffs on
false assurances and has avoided to make the payment of license fees
as and when the same the due and payable. The leave and license
agreement dated 19/01/2021 has expired by efflux of time on
14/01/2022 and thereafter the defendant is liable to pay double the
compensation amount if he fails to vacate the suit premises. Therefore,
plaintiffs are entitled to recover double the compensation from
15/01/2022 till the defendant handovers quite, vacant and peaceful
possession of the suit premises as per the terms and condition of the
registered leave and license agreement dated 19/01/2021. The
defendant has not only made payment of license fees but has also
defaulted in payment of amount to Adani Energy Pvt. Ltd. for electricity
consumed at the suit premises by the defendant.
4. It is further pleaded that looking to the conduct of the
defendant in past where not only the defendant has flouted the terms
and conditions of the leave and license agreement entered into with
plaintiffs but has also been involved in other criminal activities, and in
light of the threat issued by the defendant in past that he is the member
of some political group known as Tiger group and will do whatever is
required to be done to retain the possession of the suit premises,
plaintiffs felt that after getting knowledge about the present suit, the
defendant might induct some third party or create some third party
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rights in respect of the suit premises. Therefore, prayed that it is just
and necessary in the interest of justice and equity to appoint the
registrar of this Hon’ble Court as the court receiver to take possession
of the suit premises and to exercise all the power as provided under law
to maintain and safe guard the suit premises and our rights in respect
of the suit premises. The plaintiffs further prayed that it is just and
necessary in the interest of justice and equity to restrain the defendant,
his agents, servants, representatives by an order of injunction from
letting, underletting, subletting, giving on leave and license basis or
creating third party rights in respect of the suit premises or part thereof
during the pendency of the suit. They also prayed that this court may
pleased to pass and order directing the defendant to pay
Rs.1,40,00,000/- towards the arrears of compensation and to continue
to pay Rs.7,00,000/- per month as agreed in clause No.18 of leave and
license agreement dated 19/01/2021 during the pendency of the suit.
If the reliefs as prayed are granted no harm and prejudice would be
caused to the defendant. Hence, this application.
5. The defendant has appeared and filed reply below Exh.15.
6. It is contention of the defendant that suit filed by the
plaintiffs and injunction notice taken out therein is false, frivolous and
vexatious and not maintainable as the suit filed by the plaintiffs is pre-
matured and has been filed without any cause of action. In the year
2020, defendant and his friend Bhushan R. Jagdale was decided to start
Gym and was looking for suitable premises on a leave and license basis
in the Goregaon area. The premises bearing Tenement No.B-39/156,
Siddharth Co-operative Housing Society Ltd., Siddharth Nagar,
Goregaon (W), Mumbai-400104, was owned by the plaintiffs and the
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said premises were in very bad condition. Defendant alongwith his
friend Bhushan Jagdale, negotiated with the plaintiffs and they have
agreed to give the said premises on leave and license basis under the
condition that the defendant renovated and decorated the said licensed
premises and the cost whatever incurred would be deducted from the
agreed monthly compensation. On 9th November, 2020, leave and
license agreement came to be entered into between the plaintiffs and
defendant and his friend also made as co-licensee alongwith the
defendant herein. The said leave and license agreement was duly
registered with the office of Sub-Registrar of Assurances Borivali No.1.
After acquiring the said premises on leave and license basis, defendant
carried out renovation and decoration interior and exterior to the
licensed premises and have incurred huge expenses more than Seventy
Five Lakhs. The photographs of the licensed premises are self-
explanatory as to how much defendant spend money on the renovation
and decoration of the licensed premises. The said photographs of the
licensed premises are annexed and marked as Exhibit ‘A’ collectively
with the application.
7. It is further contended that leave and license agreement
was executed on 9th November, 2020 and thereafter renovation work
was carried out which lasted for two months and by end of the January,
2021, however due to pandemic Covid-19, the local police have not
permitted the defendant to start Gym from the licensed premises,
therefore, he could not start the Gym till the end of the December,
2021. The said fact were well aware by the plaintiffs and they have
assured that they will give concession in making payment of the agreed
compensation of the licensed premises. The defendant purchased
expensive instruments which had been installed in the licensed
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premises however due to Covid-10, the Gym was could not get
momentum as customers were not coming. On 19th January, 2021,
defendant was sitting in the licensed premises, plaintiff no.1 called him
to the office of Sub-Registrar Borivali 1. The defendant went over there
and believing the plaintiffs and without reading the contents thereof,
he signed the leave and license agreement as he was told by the
plaintiffs that this agreement is in respect of the first floor of the said
premises and the conditions are the same as well as the monthly
compensation is also same and the period is mentioned as 36 months.
Believing the plaintiffs the defendant without reading the contents
thereof have signed the leave and license agreement dated 19th January,
2021. In the month of February, 2022, he started Gym Business as the
Covid-19, was ended and the local police permitted him to operate
and/or start Gym business. He paid the sum of Rs.55,42,300/- (rupees
Fifty Five Lakhs Forty Two Thousand Three Hundred only) either in
cash or via UPI to the plaintiffs and the said amount was taken by
plaintiffs either in their accounts or in the account of their persons,
relatives and daughter. He has maintained the diary wherein the Cash
amount paid to the plaintiffs is noted. Defendant further submitted that
he would be produce the records which transferred via UPI as well as
said diary record. It is admitted by the defendant that leave and license
agreement dated 19th January, 2021 executed between the plaintiffs
and him which commenced from 15th January, 2021 but not expired by
14th January, 2022. The said leave and license agreement was for the
period of 36 months. Therefore, defendant denied that said leave and
license agreement expired by 14th January, 2022 and by notice dated
25th July, 2022, the plaintiffs have terminated the said leave and license
agreement.
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8. The defendant contended that due to Covid-19 situation he
is unable to run his Gym business. Therefore, prayed to dismiss the
injunction application of plaintiffs.
9. The plaintiff no. 1 has filed rejoinder to the reply vide
Exh.16 and denied the contentions of the defendant in toto. Plaintiffs
denied that leave and license agreement dated 19/01/2021 has not
expired by 14/01/2022 and put the defendant to strick proof thereof.
They denied that leave and license agreement dated 19/01/2021 was a
period of 36 months and crave leave to refer to and rely upon the
pleadings in the plaint about the typographical error. It is further
denied that defendant has paid any cash or transferred any amount for
the license fees/compensation via UPI and put the defendant to the
strict proof thereof. It is submitted by the plaintiffs that defendant is
not just in arrears of compensation fee but is also in default for non
payment of electricity consumed by him in the suit premises. The
plaintiffs have been getting alters and notifications from the Adani
Energy Pvt. Ltd. For the outstanding payment reminders. On many
occasions the cheque issued by the defendant to Adani Energy Pvt. Ltd.
Have been dishonoured and even the electricity connection is cut off.
All these thing as visible from the snap shots taken by plaintiff of the
alters and notifications received by him on his phone from Adani
Energy Pvt. Ltd. Therefore, plaintiffs had addressed letter dated
26/07/2022 to the Chief Officer of the Adani Electricity Mumbai Ltd
regarding the non payment of outstanding bills by the defendant and
therefore to disconnect the meter. The defendant is in illegal use and
occupation of the suit premises and is also no ready to pay outstanding
electricity bills which he has agreed to pay as per the leave and license
agreement dated 19/01/2021 and he is even not ready to pay his
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arrears of compensation/license fees and is interested in illegally
retaining the suit premises free of charge. Plaintiffs crave leave to refer
to and rely on the statements, bills, notice dated 26/07/2022 and
messages issued by the Adani Electricity Ltd. Hence, prayed it is just
and necessary that application of the plaintiffs be allowed.
10. The plaintiff no.1 filed additional affidavit in rejoinder vide
Exh.20 and stated that at the outset, the documents produced on
21/06/2023 by the defendant with malafide intention and ulterior
motive to throw dust in the eyes of this Hon’ble court and to show that
defendant has made alleged payment towards license fees. The
defendant has produced incomplete documents with malafide intention
and ulterior motive to suppress all the entire. The defendant had
requested to the plaintiffs for friendly loan of Rs.6,00,000/- to enable
him to carry on his business in the suit premises smoothly, and looking
to the impact of the Covid-19 lockdown on humanitarian grounds
plaintiffs had agreed to advance loan to the defendant. On
humanitarian grounds plaintiffs have advanced the loan of
Rs.6,00,000/- which was advanced to the defendant from the account
of Alok Nangia i.e. plaintiff no.1, Param Nangia and Rashi Nangia i.e.
son and daughter of the plaintiff nos. 1 & 2 on 08/03/2021. In order to
substantiate the said contentions, plaintiffs produced the bank
statement of HDFC Bank of Mr. Param Alok Nangia from which the
amount of Two Lakhs was transferred in the account of defendant.
Plaintiffs also produced the statement of accounts of ICICI Bank from
which the amount of Two Lakhs was transferred in the account of
defendant on 08/03/2021. They also produced the statement of
account of their daughter Miss. Rashi Nangia to show that the amount
of Two Lakhs was transferred in the account of defendant on
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08/03/2021. Till today the defendant has not fully paid the said
friendly loan which was advance to the defendant on 08/03/2021 from
the account of their family members. The Gpay entries which are
shown or tried to be shown to the Hon’ble court are not be complete
entries and therefore, they producing the snapshots of the Gpay
payments received from the defendant towards repayment of friendly
loan in plaintiff’s account and their daughter Rashi’s account and
further loan advanced in 16th July 2021 and 12th August 2021 payment
made to the defendant on the request of the defendant on
humanitarian grounds as friendly loan. In all from account of plaintiffs
son Param and plaintiff no.1 account loan amount of Rs.2,00,000/-
each was advanced to the defendant on 08/03/2021 and out of total
amount of Rs.4,00,000/- till date defendant has only paid
Rs.1,48,000/-. Similarly, from the account of plaintiffs’ daughter Rs.
2,00,000/- was advanced on 08/03/2021 as friendly loan to the
defendant and thereafter again Rs.75,000/- on 12/07/2021 and
Rs.50,000/- on 05/08/2021 and another Rs.50,000/- (i.e. Rs.25,000/-
+ Rs.25,000/-) on 12/08/2021. Out of total friendly loan of
Rs.3,75,000/- advanced from account plaintiffs’ daughter the defendant
has only paid Rs.2,75,000/- till date and there is outstanding of
Rs.1,00,000/- as on date. The said facts have been suppressed by the
defendant. The plaintiffs denied the payment to Mr. Savikant Yadav,
Gautam Furniture, Rishab Arora, and Ruchita Kadam are toward
license fees due under leave and license agreement dated 19/01/2021.
11. From the facts and circumstances of the case and material
on record following points arise for my determination and same are
discussed also with findings as below.
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Sr.
No. POINTS FINDINGS
1. Do plaintiffs made out a prima facie case in
their favour?
In the
affirmative.
2. Whether the balance of convenience lies in
favour of plaintiffs?
In the
affirmative.
3. Whether plaintiffs will face irreparable loss
in the event of rejection of application?
In the
affirmative.
4. Whether it is necessary to appoint Court
Receiver under Order XL, Rule 1 of Code of
Civil Procedure, 1908 ?
In the
negative.
5. Whether plaintiffs are entitled for arrears of
compensation from 15/01/2021 till
14/01/2022 i.e. 12 months @ Rs.3,50,000/-
per month which comes to Rs.42,00,000/-
from defendant at contractual rate as agreed
under the Leave and License Agreement ?
In the
affirmative.
6. Whether plaintiffs are entitled for arrears of
compensation from 15/01/2022 to
15/03/2023 i.e. 14 months @ Rs.7,00,000/-
per month which comes to Rs.98,00,000/-
from defendant at contractual rate as agreed
under the Leave and License Agreement ?
In the
affirmative.
7. Whether plaintiffs are entitled for
compensation/license fee at double rate i.e.
Rs.7,00,000/- per month from 15/03/2023
till disposal of suit ?
In the
affirmative.
8. What order? As per final
order.
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:: R E A S O N S ::
As to Point Nos. 1 to 7 :-
All these points are interlinked with each other, hence to
achieve brevity all are discussed altogether.
12. It has been argued by learned advocate for plaintiffs that
the present suit filed against the defendant for eviction and of the
arrears of compensation on the basis of the leave and license
agreement dated 09/01/2021 of suit premises in between plaintiffs and
defendant which commenced from 15/01/2021 and expired in
14/01/2022. They filed termination notice through advocate dated
25/08/2022 but to avoid litigation as request of the defendant grant
him 4 months time to vacate the suit premises. But surprisingly
defendant filed L.D. Suit no. 152 of 2022 in this court and does not
approached to the court with clean hands and he is guilty of
suppressing various material facts and documents. As per leave and
license agreement dated 19/01/2021 the monthly compensation
amount is Rs. 3,50,000/- i.e. 42,00,000/- for 12 months and from
15/01/2022 to 15/03/2023 i.e. 14 months @ Rs,7,00,000/- as per
clause 18 of the said registered leave and license agreement which
comes to Rs.98,00,000/- and in all aggregating to Rs.1,40,00,000/-.
The leave and license agreement dated 19/01/2021 has expired by
efflux of time on 14/01/2022 and thereafter, the defendant is liable to
pay the double compensation amount. If he fails to do vacate the suit
premises. But he failed to pay rent amount as well as electricity amount
of the suit premises.
13. It has been further argued by plaintiffs that as per the
contention of the defendant he paid sum of amount either by cash or
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Gpay payment towards the rent amount in favour of plaintiffs. In order
to said contention the defendant relied on photocopy of some online
payment to the electricity office. On the other hand the plaintiffs
submitted their rejoinder vide Exh.16 and therein contended that it has
been false contention of the defendant that he has paid a sum of
Rs.55,42,300/- in cash. The documents of payment of electricity itself
shows that the cheque issued by the defendant through Aadani Energy
Pvt. Ltd. have been dishonoured and there is outstanding payment
reminder of suit premises. Furthermore, the defendant produced
documents on 21/06/2023 to this premise also the plaintiffs submitted
additional affidavit of plaintiff no.1. It has been contended by the
plaintiffs that defendant requested for friendly loan of Rs. 6,00,000/- to
enable to him to carry on his business in the suit premises smoothly,
accordingly, the plaintiffs agreed to advance loan to him which was
from the account of Alokh Nangia, Param Nangia and Rashi Nangia son
and daughter of plaintiff no.1 & 2. The plaintiffs submitted statement
of account extract of it. The defendant has not fully paid this friendly
loan but as per record he paid sum amount through Gpay payment in
the account of plaintiff no.1 and his daughter’s account. There is
outstanding amount due at the hands of defendant. Therefore,
defendant came with malafide intention with ulterior motive before
this court. It has been further argued by plaintiffs that the defendant
tried to create third party and inducted to the another person in the
suit premises. To support his argument he relied on list of documents in
Exh.11 dated 09/08/2023. Therein reveals that there is Zumba Class
Board affixed on the front side of suit premises. Furthermore, the
photographs shows that unnecessary the flex banner affixed near by to
the suit premises which is not at all permissible as per terms of
agreement of leave and license. Therefore, during pendency of suit it is
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necessary to restrain the defendant and entitled to grant double of
license fee with arrears of due amount of license fee of suit premises.
To support the argument advanced by the plaintiffs, they
relied on bunch of case laws listed in tabular form as under :-
Sr.
No.
Name of parties &
Citation
Ratio &
relevant
paragraph
no. of
judgment
The points on which the citation
is preferred and relevant
paragraph no. of plaint, WS or
Judgment of the Trial Court, if
any, whichever is applicable
Is it over
ruled?
Or any
other
remark.
1. Maria Margarida
Sequeira Fernandes &
Ors. V/s. Erasmo Jack
De Sequeira (Dead)
through LRS 2012 (5)
SCC 370
Suit for injunction by person
claiming right to continue in
possession of immovable
property or to recover
possession-involves adjudication
of title and adjudication of
possession – if titles of
defendant to property is
established, possession of
plaintiff would be presumed to
be permissive in nature –
plaintiff with such permissive
possession must give detailed
particularised and specific
pleadings along with documents
to support him claim and details
of subsequent conduct which
establish his right to continue
possession.
Property Law – Property
litigations – Practices adopted
by unscrupulous litigants in –
Judicial determination, to
unmask those who have
inherent interest in dragging on
frivolous litigations, and to
frustrate their attempts and
impose adequate punishment
and/or to afford relief to the
Bonafide opposite party,
stressed.
It is not
over
ruled.
2. Rajdai Nandlal Shaw
V/s. Mhendra
Mangruram Gupta
Unreported Judgment
In view, in suitable cases, the
court is not powerless to pass
appropriate order for
appointment of receiver without
It is not
over
ruled.
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in the High Court of
Judicature at Bombay
ordinary original Civil
Jurisdiction Notice of
Motion No.1189 of
2014 with notice of
motion no.1789 of
2017 in Suit No.443
of 2013
any application by an of the
parties while rejecting the
application for temporary
injunction. Such power of
course has to be exercised
sparingly and in exceptional
cases where dismissal of an
application for grant of
temporary injunction may lead
the parties to take law in their
own hands and use their own
devices either for protection of
unlawful possession of recent
origin or for gaining possession
or such like circumstances.
3. Ramrameshwari Devi
& Ors. V/s. Nirmala
Devi & Ors. 2011 (8)
SCC 249.
Prolonging trial by creating
obstacles by making frivolous
applications or filing forged
documents with motive of
avoiding dispossession of
unauthorised persons
(defendants) from immovable
property of plaintiff – even if
wrongdoers under present
system which requires to be
eliminated. It should impose
actual, realistic and proper costs
on wrongdoers, grant mesne
profits at market rate to affected
party and also order
prosecution of wrongdoer for
perjury in appropriate cases –
principle of restitution should
be fully applied.
It is not
over
ruled.
Sr.
No.
Name of parties &
Citation
Ratio &
relevant
paragrap
h no. of
judgment
The points on which the citation
is preferred and relevant
paragraph no. of plaint, WS or
Judgment of the Trial Court, if
any, whichever is applicable
Is it over
ruled?
Or any
other
remark
1. Maharwal Khewanhi
Trust (Regd.)
Faridakot V/s. Baldev
Dass 2005 (1) MhLJ
1043 decided by HHJ
N. Santosh Hegde and
S.B. Sinha, JJ.
Head
Note
Unless case of irreparable loss is
made out, court should not
permit nature of property being
changed which includes also
alienation of transfer of
property.
It is not
over
ruled.
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2. Sangeeta Prints V/s.
Hemal Prints & Ors.
AIR 1986 Bom 423
decided by HHJ Smt.
Sujata V. Manohar, J
Head
Note
Suit for recovery of possession
of premises and arrears of
royalty – plaintiff giving suit
premises and business carried
out on in suit premises to
defendant as licensee in
consideration of royalty per
month – application by plaintiff
for interim deposit of royalty in
court. Held court has power to
pass interim order directing
defendant to deposit arrears of
royalty pending disposal of suit.
It is not
over
ruled.
3. New Shivam CHS Ltd.
V/s. Raj Publicity
2019 (6) Bom CR 543
decided by HHJ Dama
Seshadri
Head
Note
Possession – revocation of
license – permanent injunction
restraining licensor from
dispossession trial court
dismissed application.
It is not
over
ruled.
14. It has been argued by learned advocate defendant that
there is relation between parties as licensor and licensee. The plaintiffs
are owner of the suit premises is not disputed. There is leave and
license agreement dated 19/01/2021, therein duration of said leave
and license agreement is 36 months as said leave and license
agreement will be expired on 31/10/2023, even though the present
application filed by the plaintiffs during the existence of leave and
license agreement. As per the pleadings of the defendant they repaired
suit premises which was very bad in condition, thereafter, Covid-19
situation arose and as per circular of Government the Gym were closed
for longer period. The defendant renovated ground and first floor of
suit premises, to this premise annexed photographs along with this
application. It has been further argued by the defendant that he does
not alienated, created third party interest in the suit premises after
taking possession of it. He paid rent amount partly either in cash or
online which was accepted by the plaintiffs. Furthermore, it has been
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argued by the defendant that he filed anticipatory bail which was
rejected by Hon’ble Session Court and obtained it from Hon’ble High
Court. The plaintiffs instigated to that girl to initiate FIR against him
therefore it can not be said that the defendant is having criminal
background.
15. It has been further argued by learned advocate for
defendant that he is the victim of Covid-19 situation as he could not
commence the Gym business due to the situation which was prevailing
throughout the world. Hence, prayed that the injunction notice taken
out by the plaintiffs may be dismissed.
16. I considered the arguments advanced by both sides.
Perused application, say, rejoinder, affidavit of plaintiff no.1, document
placed on record by both the parties and bunch of case laws submitted
by the plaintiffs.
17. Before going to discuss in details I would like to mention
that this is limited inquiry to ascertain prima facie case, balance of
convenience and irreparable loss on the basis of pleadings and prima
facie documents on record. In the instant case relation between parties
admitted, it has been also admitted that initially registered leave and
license agreement dated 09/11/2020 executed in between plaintiffs
and the defendant with his partner Bhushan R. Jagdale for period of 36
months.
18. Thereafter, also one registered leave and license agreement
dated 19/01/2021 executed in between plaintiffs and defendant is
admitted. But plaintiffs contended that previous leave and license
agreement dated 09/11/2020 terminated as per notice issued dated
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10/12/2020 due to dispute between defendant and his partner and
said termination did on the request of defendant. Therefore, fresh
registered leave and license agreement dated 19/01/2021 executed
between plaintiffs and defendant for 12 months.
19. On the other hand the defendant contented that on
19/01/2021 he was sitting in the suit premises, plaintiff no.1 called
him to the office of Sub Registrar, Borivali. He went there and on
believing the plaintiffs and without reading the contents thereof, he
signed the leave and license agreement as he was told by them that this
agreement is in respect of first floor of suit premises and conditions are
the same as well as the monthly compensation is also same and the
period is mentioned as 36 months. This court observed that Prima facie
the fact remained that there are two leave and license registered
agreement. The defendant does not denied the subsequent registered
leave and license agreement dated 19/01/2021 subject to without
reading said leave and license agreement it was signed before Registrar
Office by him. Prima facie it reveals that the defendant admitted the
signature of registered leave and license agreement, registered leave
and license has presumptive value, under such circumstances it cannot
be said that he was unaware with regard to contents leave and license
agreement dated 19/01/2021, when signature and registration of said
document is admitted by the defendant. Therefore, the subsequent
leave and license agreement dated 19/01/2021 prevail being registered
and signed by defendant.
20. Defendant contended that, the leave and license
agreement dated 19/01/2021 is for period of 36 months, therefore, it is
still in existence and period is not expired. So this application does not
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tenable to grant any compensation amount. It has been also argued by
the learned advocate for defendant that if the period of leave and
license agreement is 12 months and it expired on 14/01/2022 then
why plaintiffs remained silent for such longer period and delay the file
present suit. On the other hand the plaintiffs contended that it is
nothing but typographical mistake to mention 12 months instead of it
36 months typed but the stamp duty and other contents of the said
registered leave and license agreement shows that the period of leave
and license agreement is for 12 months. On perusal the copy of
registered leave and license agreement dated 19/01/2021, prima facie
it reveals that there is period of 36 months shows in para no. 2 in first
line but in same para on second line period of commencement from
15/01/2021 to be expired on 14/01/2022. The title of said leave and
license agreement reflected the period of 12 months. As well as para
no.4 also mentioned about said period of 12 months. Thus, prima facie
it is appears that the registered leave and license agreement dated
19/01/2021 is for period of 12 months. The delay to file present suit is
explained by the plaintiffs that on request of defendant and to avoid
court proceeding awaited for the defendant to vacate the suit premises
with payment of arrears of compensation.
21. The next contention raised by defendant that he is the
victim of situation of Covid-19 being worldwide closer of business,
therefore, he could not run his Gym business and incurred income from
it. It has been contented by defendant that some of amount has been
paid by him by way of cash and online payment. On the other hand the
plaintiffs submitted that there was friendly loan has been given to the
defendant and to this premise he paid some amount either in the
accounts of daughter and son of plaintiff no.1. Prima facie on perusal
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the relevant documents it reveals that some amount has been credited
in the account of defendant by the accounts of daughter and son of
defendant no.1, the defendant paid online payment to them. There was
no any endorsement on said payment was about the monthly license
fee of suit premises. As contended by defendant that he paid in cash in
cash Rs.55,00,000/- to the plaintiffs as a license fee of suit premises, to
this premise this court observed that the defendant failed to produce
prima facie on record any rent receipt of it. Thus, at this juncture it
cannot said that there is license fee in cash of amount of
Rs.55,00,000/- had been paid by the defendant in favour of plaintiffs.
Therefore, this aspect shall be considered at the conclusion of trial.
22. As discussion held above, the registered leave and license
agreement dated 19/01/2021 expired on 14/01/2022 and there is no
prima facie evidence on record for payment of license fee from the
period of 15/01/2021 till 14/01/2022 at monthly rent of Rs.3,50,000/-
per month by the defendant. Furthermore, there is clause no.18 in the
registered leave and license agreement dated 19/01/2021, on perusal
said clause, it reveals that in the event of failure to vacate premises on
expiry of said agreement the defendant is liable to pay double of rent
till handover the possession of premises to the plaintiffs. As on today it
is on admitted that the defendant is in possession of suit premises after
the expiry period of registered leave and license agreement dated
19/01/2021. The ground mentioned by the defendant being victim of
Covid-19 situation his business could not run well so could not make
payment of entire license fee, is not at all considerable in the present
year 2023. Suit premises being commercial premises is in the
possession of defendant without payment of arrears of license fee, it is
required to be protected from subletting, part of possession of suit
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premises at the hands of defendant and he also liable to pay the arrears
of compensation @ Rs.3,50,000/- per month from 15/01/2021 till
14/01/2022 i.e. Rs.42,00,000/-. Furthermore, as discussion held above
after the expiry period of leave and license agreement dated
19/01/2021, the suit premises is in possession of defendant without
payment of license fee. Therefore, as per clause No.18 of said
agreement, he is liable to pay compensation double of license fee
amount i.e. @ Rs.7,00,000/- per month from 15/01/2022 to
15/03/2023 of an amount of Rs.98,00,000/- in all the defendant is
liable to pay arrears of compensation amount of Rs. 1,40,00,000/- to
the plaintiffs, therefore, he directed to deposit an amount of
Rs.1,40,00,000/- in the court. As discussion held above, the defendant
is also liable to double compensation/license fee amount of
Rs.7,00,000/- per month from 15/03/2023 till disposal of suit.
Consequently, the above said arrears of compensation and license fee
amount as and when deposited by the defendant, the plaintiffs are at
liberty to withdraw the said amount subject to undertaking that they
would redeposit said amount as and when directed by this court.
23. The plaintiffs contended that suit premises being
commercial property is in the dangerous situation by creating third
party interest by alienating by the defendant, therefore, it is necessary
to appoint Court Receiver to obtain possession of it. As discussion held
above the defendant is temporarily restrained from not to create third
party interest, subletting, part with the possession of suit premises.
Therefore, at this juncture, this court found that there is no
requirement to appoint Court Receiver. The case laws referred by
plaintiffs is settled position of law. As discussion held above this court
found that there is prima facie case in favour plaintiffs, balance of
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convenience also lies in their favour. If the injunction is refused then
they will suffered irreparable loss which can not be compensate in
terms of money. They are also entitled to recover arrears of
compensation as above mentioned terms. Therefore, I answer point
nos.1 to 3 & 5 to 7 in the affirmative and point No.4 in the negative.
As to point Nos. 8 :-
24. In view of the findings as to point nos. 1 to 7, I proceed to
pass following order.
:: O R D E R ::
1) Application (Exh.11) is partly allowed.
2) The Defendant, his agents, servants, representatives
is restrained from letting, underletting, subletting or
giving on leave and license basis suit premises or any
part thereof during the pendency of the suit.
3) The defendant is directed to deposit in the court the
arrears of compensation from 15/01/2021 till
14/01/2022 i.e. 12 months @ Rs.3,50,000/- per
month which comes to Rs.42,00,000/- and period
from 15/01/2022 to 15/03/2023 i.e. 14 months @
Rs.7,00,000/- per month (i.e. double of license fee)
which comes to Rs.98,00,000/- in all aggregating to
Rs. 1,40,00,000/- within 2 months from the date of
this order.
4) The defendant is further directed to deposit in the
court the compensation/license fee at double rate i.e.
Rs.7,00,000/- per month from 15/03/2023 till
disposal of suit.
5) The plaintiffs are at liberty to withdraw the above
said arrears of compensation and license fee amount
as and when deposited by the defendant subject to
undertaking that they would redeposit said amount
as and when directed by this court.
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6) Prayer in respect of appointment of Court Receiver is
hereby refused.
7) Both parties to take note of this order.
8) Cost in cause.
( Nutan S. Saraf )
Date: 04/10/2023. Judge, C.R. No. 40
Order dictated on : 04/10/2023.
Order Typed on : 04/10/2023.
Order checked & signed on : 07/10/2023.
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