Interim Order 2

Order Details: Order on Exhibit
Pdf Text: 1 LEC-83-2022-Exh-13-deposit compensation.odt
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT 13
IN
L.E. & C. SUIT NO.83 OF 2022
(CNR : MHSCA3-000643-2022)
Mrs. Dayavati Diwakar Mada and anr. … Plaintiffs
V/s
Mr. Latif Ahmed Shaikh ... Defendant
Advocate for the plaintiffs : Mr. Anthony D’Silva.
Advocate for the defendant : Mrs. Agnes Martins.
Coram : D. P. Kasat,
Judge, C.R.No.37 (B.B.),
Date : 19.07.2023
ORAL ORDER :
This is an application filed by CA of the plaintiff No.2
seeking direction to defendant to deposit an amount of Rs.7,65,000/-
till December 2022 and further amount of Rs.15,000/- per month
every month till hearing and disposal of the suit.
2. It is contention of the plaintiffs that defendant has paid
last monthly royalty in September 2018 and thereafter he has not
paid any royalty. The defendant continues to conduct the business of
the plaintiff and making huge profit. The defendant has mentioned in
his written statement that he was paying Rs.8000/- per month to the
plaintiffs. The defendant had also filed RAD suit to be declared as
tenant of the suit premises which was dismissed. Even in that suit, he
did not make any application to deposit amount in the court nor he
has made any payment of royalty to the plaintiffs. The defendant is
delaying the present proceeding. Hence, the present application.
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3. The defendant has resisted the application by filing say
at Exh.14 contending that this court cannot fix the royalty and allow
the parties to pay the same and withdraw any amount as royalty.
Plaintiffs have to prove the case that defendant is licensee. When
plaintiffs have pleaded that defendant is licensee, the question of
paying royalty does not arise. As per plaintiffs, the business belongs
to them, then defendant can never be termed as licensee. At the most,
he will be conductor. There is no leave and licence agreement also. It
is denied that defendant paid royalty of Rs.15000/- in September
2018. The defendant has paid rent of Rs.8000/- till July 2018. The
plaintiffs cannot take undue advantage of dismissal of RAD suit.
4. It is further contended that defendant is ready to deposit
Rs.8000/- towards rent from August 2018 till March 2023 which
comes to Rs.4,48,000/- for 56 months in the court without prejudice
to his rights as a tenant, though his RAD suit was dismissed. The
application has no merit and defendant prayed to deposit the arrears
of rent of Rs.4,48,000/- in two installments.
5. Heard both sides. Perused record. At the outset, perusal
of record shows that as per the consent terms in S.C. Suit No.3212 of
1996, the parties have agreed that the defendant to hand over
possession of business and business premises to the plaintiff on or
before 13.04.2005 and in the event of continuation of defendant in
the said premises, he shall pay royalty or compensation to the
plaintiff at the rate of Rs.200/- per day from 14.04.2005 till the
possession of said premises is recovered by the plaintiff.
6. However, from the contentions raised by both the parties,
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it appears that even after 14.04.2005, the defendant continued in
possession of the said premises. It also appears from the contentions
raised by the parties that upto the year 2018, the defendant was
making payment to the plaintiff and the plaintiff was accepting the
same. This circumstance itself is sufficient to show that despite
executing consent terms and despite agreeing to vacate said premises
in the year 2005, the defendant is in possession of the said premises.
As far as the contention of the parties regarding their relationship as
licensor and licensee or landlord and tenant is concerned, that has to
be decided only after trial.
7. However, at this juncture, admittedly the defendant is in
possession of the said premises. More so, admittedly since August
2018, the defendant has not paid any amount to the plaintiff. It is
also significant to note here that though the plaintiff has contended
about royalty of Rs.15,000/- per month and though the defendant
has contended about rent of Rs.8,000/- per month, none of them
have produced any evidence on record to substantiate their respective
contentions.
8. In such circumstances, in order to avoid conflict and
without prejudice to the rights of the parties, it would be just and
proper to direct the defendant to deposit amount of Rs.8,000/- per
month in the Court, which the plaintiff shall be entitled to withdraw.
As far as the arrears of amount are concerned, as admitted by the
defendant, it would be just and proper to direct him to deposit
arrears of amount from August 2018 till July 2023 i.e. for 60 months
at the rate of Rs.8,000/- per month, which comes to Rs.4,80,000/-,
within a period of two months from the date of this order. Hence, the
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following order :
ORDER
1. Application is partly allowed and the defendant is
hereby directed to deposit arrears of amount
from August 2018 till July 2023 i.e. for 60
months at the rate of Rs.8,000/- per month,
which comes to Rs.4,80,000/- within a period of
two months from the date of this order in the
Court.
2. The defendant to deposit amount of Rs.8,000/-
per month in the Court on or before 10th day of
each month and continue to deposit the same
until final disposal of the suit, without any
default.
3. It is hereby clarified that this order is without
prejudice to the rights of any of the parties.
4. The plaintiff shall be at liberty to withdraw the
amount deposited by defendant in the Court.
(D. P. Kasat)
Judge, C.R.No.37 (B.B.)
19.07.2023
Dictated on : 19.07.2023
Checked & signed on : 19.07.2023
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