Interim Order 7

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
ORDER BELOW EXHIBIT NO. 23
IN
L. E. & C. SUIT NO. 16 OF 2023
[ CNR No.:- MHSCA3-000188-2023 ]
1. Mr. Alok Yudhister Nangia & Anr. … Plaintiffs
Versus
Mr. Vishal B. Sonawane … Defendant
Mr. Jikesh Shah, Ld. advocate for the Plaintiffs.
Mr. Dinesh R. Pandey, Ld. advocate for the Defendant.
Coram : Smt. Nutan S. Saraf
Judge, C.R. No. 40,
Date : 19th June, 2024.
:: ORDER ::
This is an application filed by plaintiffs for striking off the
defence of the defendant.
2. By this application plaintiffs submitted that they have filed
the above suit for eviction of the defendant and for recovery of the
arrears of compensation from the defendant. They crave leave to refer
to and rely upon the plaint and annexures attached thereto as if the
same is repeated and reiterated herein in verbatim. The Leave & 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
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rejoinder letter dated 30/08/2022 and filing of the affidavit in reply in
notice of motion taken out by defendant in S.C. Suit No. 1588 of 2022,
the defendant approached them and requested to grant him four month
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. The defendant surreptitiously filed L.D. Suit No.152 of 2022
which is pending in the court and also have taken out injunction
application for obtaining ad-interim and interim reliefs to be used
against them as an arm-twisting tactics. The defendant has not
approached this court with clean hands and is guilty of playing fraud on
this court as well as on them.
3. It is further contended that defendant is in arrears of
monthly compensation as agreed in the Leave & 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 & 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). The defendant is in arrears from April 2023 till
December 2023 as per order dated 04/10/2023 amounting to
Rs.63,00,000/- (Rupees Sixty Three Lakhs only). Till today the
defendant is in arrears of license fees amounting to Rs.2,03,00,000/-
(Rupees Two Crores Three Lakhs only). The plaintiffs further contended
that they have been law abiding citizen and have on several occasions
demanded the monthly compensation during the tenure of Leave &
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License Agreement from the defendant but he has always kept us on
false assurances and has avoided to make the payment of license fees as
and when the same the due and payable as he wants to retain the
possession of the suit premises and blackmail them and extort monies
from them. The defendant has not only not 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. He also not complied
as per order passed below Exh.11. There is no stay granted to the order
passed by this court in Exh.11 and till date the defendant has not filed
any Appeal or obtained any stay from Higher Court. Inspite of sufficient
time granted by this court, defendant has failed to comply with the
order dated 04/10/2023 passed below Exh.11, therefore his defence are
required to be struck off. The defendant is only interested in using the
suit premises free of cost without payment of amount as agreed in the
registered Leave & License Agreement. The said Leave & License
Agreement has expired as well as same is terminated and defendant has
no right to occupy the suit premises free of charge. The defendant is
bent upon to misuse and abuse the process of this court. Hence, prayed
this court may be pleased to strike off the defence of the defendant.
4. In response to the present application, the defendant filed
his reply vide Exh. 25 and denied the allegation therein in toto. It is his
contention that the present application taken out by the plaintiffs are
malafide and not maintainable. According to him, the plaintiffs are
having stained relation with him and upon instigation is taking out
application to cause harassment. He further submitted that in clause
No.2 it was clearly mentioned that the period of the Leave & License
Agreement is for 36 months and it was intention of the parties to create
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Leave & License Agreement for period of 36 months, in as much as in
clause No.4 of Leave & License Agreement it is clearly mentioned that
the Licensee shall issue post dated cheques towards all 36 months. As
per clause No.4 of Leave & License Agreement it was clearly mentioned
that amount of compensation fixed was fro initial period of 12 months,
which clearly shows that intention was to create Leave & License
Agreement for period of 36 months. The plaintiffs are erroneously came
to the conclusion that the Leave & License Agreement was executed
only for period of 12 months and misguide to the court, therefore the
present application be dismissed with costs. The period of Leave &
License Agreement is no 12 months but is executed for the period of 36
months then the suit filed is premature and is thus not maintainable. It
is further submitted that trial court come to conclusion that since the
provision of Sec.24 of Maharashtra Rent Control Act, 1999 do not apply
to commercial premises the relief claimed by the respondent about
double the compensation cannot be granted. Section 24 of Maharashtra
Rent Control Act, 1999 is applicable only to Leave & License Agreement
for residential premises and admittedly the suit premises is not
commercial premises. The provision of Section 24 of Maharashtra Rent
Control Act, 1999 are not applicable to commercial premises and the
present leave and license agreement is not governed by the provision of
Maharashtra Rent Control Act, 1999.
5. The defendant further contended that he has filed Revision
against the order dated 04/10/2023, in between his mother is expired
therefore he was very disturb. According to him the order is not proper
because compensation is very huge amount, therefore, he could not in
position to deposit the compensation. It is further contended that it
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appears from the acts of the plaintiffs that they are interested in
litigating and wants him also to continue the litigation. Due to his
financial constraints and losses in business, he is not in position to
deposit compensation. He has spend huge amount towards repairing,
renovation, interior and furniture work in the suit premises as the same
was in bad condition and unusable, and huge expenses has been borne
and paid by him in repairing work in the suit premises, otherwise it was
difficult for his business from the suit premises. He had spend such huge
amount in the aforesaid because it was agreed and confirmed between
him and plaintiff, therefore, he shall be entitled to use, occupy and
possession of the suit premises. Hence, prayed that the application of
the plaintiff may be rejected with costs.
6. It has been argued by learned advocate for plaintiff that as
per order vide Exh.11 dated 04/10/2023 this Court directed to
defendant to pay double agreed license fee after the expiry period of
Leave & License Agreement. The said amount has not been deposited
within two months as directed by the court. No stay was granted by the
Hon’ble Appellate Court against order vide Exh.11. Accordingly, as per
Bombay High Court amendment under Order XV A of Code of Civil
Procedure, 1908, in the event of any default in making the deposit
license fee or arrears of license fee as directed by court, the court may
strike off the defence of the defendant. Hence, prayed to allow this
application in the ambit Order XV A of Code of Civil Procedure, 1908.
7. Learned advocate for defendant argued that order vide
Exh.11 has been challenged by defendant before Hon’ble Appellate
Court. Revision and stay application also pending. The defendant is
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ready and willing to pay license fee but this court directed to deposit
double of amount of license fee. It is not residential premises to levy
double amount of license fee as per Section 24 of Maharashtra Rent
Control Act, 1999. In the Leave & License Agreement period by mistake
mentioned 36 months not 12 months and plaintiff failed to make said
correction, therefore, the application to strike off defence is liable to be
rejected.
8. I have gone through application, reply and proceeding. I
considered the argument advanced by both sides. It is on record that
this court directed to the defendant to deposit license fee as prescribed
in order vide Exh.11 within two months after the passing the order. It is
also on record that defendant failed to deposit said arrears of license fee
as directed by this court. According to defendant, this court levied
double of rate of compensation which is not legal within the ambit of
Section 41 of Presidency Small Cause Courts Act, 1882 because double
of rate of compensation has to be levied for residential premises under
Section 24 of The Maharashtra Rent Control Act, 1999. This court is of
opinion that the said issue shall be considered before Revisional
Authority, this court has no jurisdiction to discuss this aspect in the
present application. Furthermore, the defendant contended that the
Revision and stay application is pending but as on today no any stay
order has been received to this court by the Hon’ble Appellate Authority.
Under such contingency, the defendant could not escape from liability
to deposit license fee when till today he using and occupying suit
premises. As per the Maharashtra Amendment under Order XV A of
Code of Civil Procedure, 1908, if defendant failed to pay arrears of
license fee or licensee fee then his defense liable to be strike off. In the
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instant case, inspite reasonable opportunities has been given to
defendant, he failed to deposit license fee till today. As discussion held
above, in default of depositing the license fee amount as directed by this
court vide order Exh.11 the defense of defendant is liable to be struck
off. Hence, considering the discussion made above, I proceed to pass
following order :-
:: O R D E R ::
1. Application at Exh.23 is allowed.
2. The defense of defendant is hereby struck off.
3. Both parties to take note of this order.
( Nutan S. Saraf )
Date: 19/06/2024. Judge, C.R. No. 40
Order dictated & Typed on : 19/06/2024.
Order checked & signed on : 19/06/2024.
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