Order 3

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 11
IN
L.E. & C. SUIT NO. 57 of 2023
(CNR No. :- MHSCA3-000539-2023)
M/s. Rajendra Builders
Through its partner Mr. Rameshchand
Babulalji Bohra ... Plaintiffs
Versus
M/s. Lok Holding and Construction Ltd. ... Defendants
Mr. G. S. Yadav, Ld. Advocate for the Pslaintiffs.
Khatri Legal Venture, Ld. Advocate for the Defendants.
Coram :- P. K. Kharate, Judge
C. R. No. 36 [B.B.]
Date :- 11/12/2023
ORDER :
The plaintiff has filed this suit for recovery of arrears of
license fee/compensation and for the possession.
2. The plaintiff averred in the application that the defendant
are illegally holding the possession of the suit premises even after
expiry of the license period. The defendant has failed to pay the
license fees along-with GST and TDS from 15/05/2019 as per the
statement annexed with the plaint. Hence, near about Rs.
26,27,2023/- is due towards the defendant as a license fees, GST
and TDS. The plaintiff is also claiming the damages for the period
from 15/05/2022 upto 31/03/2023 @ Rs. 1,00,000/- per month
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i.e. total amount Rs. 13,41,218/-. Moreover, the plaintiff also
prayed to direct the defendant to pay compensation @
Rs. 1,00,000/- per month from 01/04/2023. The plaintiff further
prayed that the defendant and its partner may be restrained by an
order of injunction from parting with possession of the suit
premises to third party.
3. The say has not filed by the defendant, hence ‘No Say’
order passed against defendant.
4. Heard advocate for plaintiff at length.
5. The following points arise for my determination. I have
given my findings thereon for the reasons stated as follows:
POINTS FINDINGS
1) Whether the plaintiff has made out
prima - facie case in their favour ?
: In the
affirmative.
2) Is the balance of convenience lies in
favour of the plaintiff ?
: In the
affirmative.
3) Whether the plaintiff will suffer
irreparable loss if injunction as
prayed not granted ?
: In the
affirmative.
4) Whether the plaintiff is entitled for
interim reliefs of compensation/
license fees and other reliefs as
claimed ?
: Partly
affirmative.
5) What order ? : As per final
order.
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: R E A S O N S :
As to Point Nos. 1 to 5 :-
6. In the present case, the plaintiff has filed the application
stating that the defendant be ordered to pay Rs. 26,27,203/-
towards license fees. In the present case, it is necessary to see the
relevant provisions i.e. Order 15(A) of C.P.C. which states as
below:-
“XV-A- Striking off Defence in a Suit by a Lessor [1] In
any suit by a lessor or a licensor against a lessee or a
license, as the case may be, for his eviction with or
without the arrears of rent or license fee and future mesne
profits from him, the defendant shall deposit such
amount as the Court may direct on account of arrears up
to the date of the order (within such time as the Court
may fix) and thereafter continue to deposit in each
succeeding month the rent or license fee claimed in the
suit as the Court may direct. The defendant shall unless
otherwise directed continue to deposit such amount till
the decision of the suit”.
7. On perusal of order 15(A), it appears that the licensor
should file the suit for eviction against the licensee. In the present
case, the plaintiff has filed suit for eviction along with license fees.
8. In the present case, the plaintiff has filed on record the
Leave and License Agreement dated 16/05/2019. On perusal of
Leave and License agreement dated 16/05/2019, it appears that
there is relation of Licensor and Licensee between both the parties.
The said Leave and License is in respect of Unit No. B/1, situated
at Upper Basement admeasuring approximately 800 sq.ft. carpet
area on the upper basement floor in the building known as
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“INIZIO” situated at plot bearing CTS Nos. 479, 479/1 to 17 (New
CTS No. 479A), Cardinal Gracious Road, Chakala, Andheri (East),
Mumbai – 400 099 situated in Municipal K-East Ward of MCGM.
9. On perusal of said Clause No. 4.3 of the Leave and License
Agreement, it appears that the license period was from 15/05/2019
to 14/04/2022 and license fees is near about Rs. 50,000/- per
month. It means, the license period is already over and defendant
has not vacated the suit premises and also not paid the license fees
to the plaintiff. Hence, the plaintiff has rightly claimed the arrears
of license fees which is annexed at Exh. ‘F’ along-with plaint. On
perusal of said statement, it appears that there is an amount due
from May, 2019 till April, 2022 i.e. total Rs. 26,27,203/- towards
the defendant.
10. In the present case, considering Order 15A of the CPC the
plaintiff is also entitled for the compensation of Rs. 50,000/- from
May, 2022 till December, 2023 and also entitled for the further
compensation till the possession of the suit premises.
11. On perusal of the Leave and License Agreement, it
appears that the prima facie case is in favour of the plaintiff.
Moreover, the plaintiff has also issued the termination notice to
the defendant on 29/09/2022. On perusal of the Leave and
License Agreement it appears that there is a relationship of
licensor and licensee between both parties. Hence, if the defendant
will create third party interest then it will cause irreparable loss to
the plaintiff. Moreover, the balance of convenience is also lies in
favour of plaintiff. But, the plaintiff is not entitled for other relief
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at interim stage. Hence, considering the above discussion I have
recorded my findings as to Point No. 1 to 3 is in affirmative, Point
No. 4 is in partly affirmative and in answer to Point No. 5 I pass
the following order:-
: ORDER :
1. The application below Exh. 11 is partly allowed.
2. The defendant is directed to deposit arrears of license fees of
Rs. 26,27,203/- (Rs. Twenty Six Lakhs Twenty Seven
Thousand Two Hundred Three only) for the period from
May, 2019 till April, 2022 within one month from today in
the Court.
3. The defendant is also directed to pay the monthly
compensation for the period from May, 2022 till December,
2023 @ Rs. 50,000/- per month within one month from
today in the Court.
4. The defendant is also directed to continue to pay the
monthly compensation Rs. 50,000/- per month from
January, 2024 till the disposal of the suit on or before 10th
day of each succeeding English Calender month.
5. The defendant, their agents, servants, family members,
person or persons claiming through or under them are
hereby restrained by temporary order of injunction from
creating any third party rights or interest in the suit
premises i.e. Unit No. B/1, situated at Upper Basement
admeasuring approximately 800 sq.ft. carpet area on the
upper basement floor in the building known as “INIZIO”
situated at plot bearing CTS Nos. 479, 479/1 to 17 (New CTS
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No. 479A), Cardinal Gracious Road, Chakala, Andheri
(East), Mumbai – 400 099 situated in Municipal K-East
Ward of MCGM (more specifically mentioned in para no. 2
of the plaint) or part with possession till hearing and
disposal of the suit.
(Dictated and pronounced in open Court.)
sd/-
(P. K. Kharate)
Date : 11/12/2023 Judge, C.R. No. 36
Order dictated and typed on : 11/12/2023
Order checked and signed on : 11/12/2023
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