Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 08.04.2024.
Registered on : 30.07.2024.
Date of Decision : 10.09.2024.
Duration of disposal : Years Months Days
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CNR No. MHSCA3-00-0661-2024
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
P. Appeal No. 45 of 2024
In
L.E. & C. Suit No. 49 of 2020
Mrs. Sanjjari Sanju Kashyap
Age 38 years & Occ : Business
The Fifth Element – Spa & Salon,
Having address at, Row House No. 2,
Vaishnav Villa, Thakur Complex
Kandivali (East), Mumbai – 400 101
And Row House No.D-4, 1st floor, Crystal
Lawn Thakur Complex, Kandivali (East),
Mumbai 400 101. Appellant (Org.
defendant)
V/s.
Mrs. Daksha Kamlesh Kothari
Age – 61 years, Occ – Housewife
Residing at 77/78, 7th floor, Karma
Kshetra, B-2 Wing, Flank Road, Sion,
Koliwada, S.S.S. Nagar, Mumbai 400
037.
Respondent
(Org. plaintiff)
Learned advocate Mr.Krishnadev Ashok Kumar Pandey, for appellant.
Learned advocate Chirag Gandhi for respondent.
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Coram : Smt. A.S. Khadse,
Addl. Chief Judge &
Shri D.R. Mali, Judge.
C.R. No. 31 (B.B.)
Date : 10.09.2024.
J U D G M E N T :- [Per D. R. Mali, Judge]
1) Being aggrieved and dissatisfied with the judgment and
decree dated 07.03.2024 passed by learned trial court in L.E. & C. Suit
No. 49 of 2020, wherein suit was decreed with costs, the defendant /
appellant has preferred this appeal.
2) The appellant was defendant whereas respondent was
original plaintiff in the said suit. They will be referred as per their
nomenclature in the said suit for the sake of convenience.
3) In brief, the facts of the case are as under :-
The plaintiff is the owner of the Row House No. D-4,
situated on first floor, Crystal Lawn, Thakur Complex, Kandivali (East),
Mumbai 400 101, in the property bearing CTS No. 778D, Village Poisar.
(hereinafter this property shall be referred as the ‘suit premises’).
4) The defendant, in the month of June 2017, approached to
the plaintiff and requested to give the suit premises on leave and license
basis. After negotiation, the plaintiff agreed to permit the defendant to
use the said premises purely on leave and license basis for a period of
60 months commencing from 01.06.2017 upto 31.05.2022. The written
leave and license agreement was executed on 19.06.2017. The terms
and conditions in the leave and license agreement are set out by both
the parties. The said leave and license agreement has been registered in
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the office of Sub-Registrar of Assurances, Mumbai, vide registration no.
BRL-8/4977/2017.
5) As per the terms and conditions of the agreement, the
defendant deposited sum of Rs. 5 Lakhs with the plaintiff as an interest
free security deposit. The license fee / compensation for the period
01.06.2017 to 31.05.2018 was Rs.75,000/- per month. The license fee /
compensation for the period 01.06.2018 to 31.05.2019 was Rs.82,500/-
per month. The license fee / compensation for the period 01.06.2019 to
31.05.2020 was Rs.90,750/- per month. The license fee / compensation
for the period 01.06.2020 to 31.05.2021 was Rs.95,287/- per month.
The license fee / compensation for the period 01.06.2021 to 31.05.2022
was Rs.1,00,051/- per month.
6) The plaintiff submitted that the defendant was committing
breach of terms and conditions of the agreement by not paying the
license fee / compensation. After making repeated requests, the
defendant paid last license fee upto February 2019. The defendant is in
arrears of the license fee since March 2019 onwards. Due to repeated
breach of terms and conditions of license, the plaintiff through her
advocate’s notice dated 18.04.2019, terminated the leave and license
agreement and called upon the defendant to vacate the suit premises
and deliver possession to the plaintiff. The plaintiff also called upon the
defendant to pay the arrears of license fee. However, the defendant
neither vacated the suit premises nor paid the arrears of license fee. On
the contrary, the defendant filed S.C. Suit no. 3783 of 2018 before the
Hon’ble City Civil Court against the plaintiff.
7) The plaintiff further submitted that the defendant has sent
a vague, ambiguous and false reply to the notice dated 18.04.2019. The
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plaintiff submitted that there is no substance in the allegations made by
the defendant in his reply.
8) The plaintiff further submitted that the defendant has
committed breach of terms and conditions of the tenancy and therefore,
the plaintiff has terminated the license. Hence, the defendant is liable to
pay the arrears of license fee / compensation as well as she is liable to
deliver vacant and peaceful possession of the suit premises to the
plaintiff. The plaintiff has claimed the arrears of license fee as well as
interest.
9) The defendant had filed the written statement at Exh. 12.
Thereafter, the plaintiff had filed an application at Exh.15 under Order
XV-A of the Code of Civil Procedure for directing the defendant to pay
the arrears of license fee and to deposit the ongoing license fee. The
said application was decided on merit and defendant was directed to
pay the arrears of monthly rent. The defendant failed to comply with
this order and therefore, the defence of the defendant came to be struck
off. The defendant did not challenge this order. Therefore, though the
written statement of the defendant was initially filed, it cannot be
considered at all.
10) After considering the evidence on record, the learned trial
court has decreed the suit. Being aggrieved by the said judgment and
decree, the defendant has preferred this appeal on the ground that the
plaintiff had promised the defendant that he will not allow to conduct
the similar business in the building which would affect the defendant’s
business. However, plaintiff committed breach of this promise. The
defendant submitted that the learned trial court failed to consider that
the defendant has invested huge sum of Rs.80 Lakhs for renovating the
premises to start the business. Defendant submitted that the learned
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trial court has not considered the evidence on record in its true spirit
and therefore, committed error in decreeing the suit. The defendant
further submitted that the claim of the plaintiff is totally baseless and
without any substance. The defendant further submitted that he has
filed S.C. Suit No. 3743 of 2018 claiming the compensation from the
plaintiff which is pending before the Hon'ble City Civil Court at
Dindoshi. It is further submitted that the plaintiff constantly obstructed
the smooth conducting of business of the defendant and therefore, the
plaintiff is not entitled to any relief.
11) After considering the rival contentions of both the parties
and their learned advocates, following points arise for our consideration
to which we have recorded our findings together with the reasons as
under :-
Sr. No. POINTS FINDINGS
1 Does plaintiff prove that she has validly
terminated the leave and license
agreement ?
“In the affirmative.”
2 Does the plaintiff prove that the
defendant has not paid the license fee /
compensation and she is in arrears of
the amount ? If Yes, what would be the
quantum of arrears of compensation ?
“In the affirmative.
As per the order
passed by the
learned trial court.”
3 Is plaintiff entitled to mesne profits ? “In the affirmative.”
4 Is plaintiff entitled to recover possession
of the suit premises ?
“In the affirmative.”
5 Whether the impugned judgment and
decree required interference at the
hands of this Appellate Court ? “In the negative.”
6 What order and decree ? “Appeal stands
dismissed with
costs.”
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R E A S O N S
As to Point No. 1 & 4 :-
12) We have heard learned advocate for both the parties at
length. The learned advocate for the defendant has argued that the
defence of the defendant has been struck out. There was a delay for
filing an appeal against that order. Therefore, the defendant was
required to file a MARJI application for condonation of delay. He argued
that there was an agreement between the plaintiff and defendant to
waive the rent for a particular period but the plaintiff did not waive that
amount. He further argued that the order of interim compensation
could not have been passed by the court. He further argued that the
learned trial court has committed error in striking out the defence of the
defendant. He argued that if the defendant had led the evidence, then
the defendant could have succeeded in defending the suit and the suit
could have been dismissed. He further argued that the plaintiff is not
entitled to claim the arrears of license fee / compensation and the
plaintiff is not entitled to recover possession of the suit premises. He
argued that the plaintiff is not entitled to the damages as claimed in the
plaint. He argued that the defendant has incurred huge expenses of
about Rs.80 Lakhs for renovation of the suit premises for starting the
business. Therefore, he argued that the plaintiff is not entitled to any
relief and the suit deserves to be dismissed.
13) The learned advocate for the plaintiff has argued that the
defendant has no voice in this appeal because her defence has been
struck out. He argued that the entire suit is based upon the written
leave and license agreement and the defendant cannot raise the
grounds which are beyond the agreement. He argued that the
contentions of the defendant raised while arguing this appeal are totally
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baseless. He argued that the plaintiff has terminated the leave and
license agreement by sending a notice. The said notice has been
received by the defendant but the defendant has sent a false reply
which cannot be relied upon. He argued that the plaintiff is claiming the
arrears of license fee / compensation as per the agreement alongwith
the interest as per the agreement. Therefore, the amount claimed by the
plaintiff is just and reasonable and the learned trial court has
considered all these aspects while passing the decree in favour of the
plaintiff. He argued that the decree passed by the learned trial court is
based upon the sound reasoning and therefore, it needs to be
confirmed.
14) On perusal of the plaint as well as the submissions of the
defendant, it is crystal clear that there was a registered leave and
license agreement executed between the plaintiff and defendant on
19.06.2017. This agreement has been produced by the plaintiff at Exh.
43. The plaintiff has also led the evidence by examining herself wherein
she has reiterated all the contentions raised in the plaint. She has
deposed that the defendant has not obeyed the terms and conditions of
the agreement and committed breach of terms and conditions
mentioned in the agreement. In order to see whether the defendant has
committed breach of the terms and conditions of the agreement, it is
necessary to see the copy of agreement. As per the major terms and
conditions, the defendant was liable to pay the license fee monthly as
per the chart provided in the agreement in para 3.1. The notice sent by
the plaintiff dated 18.04.2019 at Exh. 51 shows that the plaintiff had
specifically mentioned that the defendant is not paying the
compensation / license fee as per the agreement and committed the
breach. This notice has been replied by the defendant. On perusal of
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this reply, it appears that the contentions raised in the reply do not find
place in the leave and license agreement.
15) As per Section 91 and 92 of the Indian Evidence Act, the
oral evidence in respect of the contents of a document cannot be led by
the parties. Therefore, the terms and conditions mentioned in the
agreement will prevail. As per the notice dated 18.04.2019, the
defendant has not paid the amount of license fee / compensation to the
plaintiff. Moreover, despite the direction given by the learned trial court
vide an order passed below Exh.15, the defendant did not pay the
amount of compensation. It clearly shows that the defendant has
committed breach of terms and conditions of the tenancy. The breach
committed by the defendant gives a right to the plaintiff to terminate
the leave and license. The notice dated 18.04.2019 is issued as per the
terms and conditions in the agreement which is duly proved. The
contrary evidence which the defendant tried to adduce cannot be
accepted. Nothing has been brought during the cross-examination of
P.W.1 to believe the contentions of the defendant. Therefore, considering
the leave and license agreement, notice dated 18.04.2019 and the oral
evidence led by the plaintiff, it can be said that the leave and license
agreement between the plaintiff and defendant has been validly
terminated by the plaintiff. Hence, we answer point no. 1 in the
affirmative. Since the leave and license is terminated, the plaintiff is
entitled to recover the possession of the suit premises from the
defendant. Therefore, we answer point no. 4 in the affirmative.
As to Point No. 2 & 3 :-
16) As discussed above, the leave and licence agreement is duly
proved. The terms and conditions in the agreement shows that the
license fee / compensation for the period 01.06.2017 to 31.05.2018 was
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Rs.75,000/- per month. The license fee / compensation for the period
01.06.2018 to 31.05.2019 was Rs.82,500/- per month. The license fee /
compensation for the period 01.06.2019 to 31.05.2020 was Rs.90,750/-
per month. The license fee / compensation for the period 01.06.2020 to
31.05.2021 was Rs.95,287/- per month. The license fee / compensation
for the period 01.06.2021 to 31.05.2022 was Rs.1,00,051/- per month.
No contrary evidence has been brought on record to disbelieve the
above said license fee agreed upon by the parties. The learned trial
court has considered the fact that the interest at the rate of 18% is also
payable by the defendant in case of the breach. Looking into
commercial nature of transaction, the rate of interest awarded by the
learned trial court appears to be reasonable. Therefore, we come to the
conclusion that the calculation made by the learned trial court with
regard to the arrears of license fee / compensation along with interest is
correct and the defendant is liable to pay this much amount. Moreover,
the leave and license agreement has been terminated on 18.04.2019
and since then the possession of the defendant has become unlawful
and wrongful. In case of unlawful and wrongful possession, the
defendant is liable to pay the mesne profits. As per Order XX Rule 12
(1) (c) of The Code of Civil Procedure, the inquiry into mesne profits
needs to be directed and the learned trial court has directed such
inquiry. In this situation we come to the conclusion that the defendant is
liable to pay the arrears of license fee / compensation as ordered by the
learned trial court and there is a need of an inquiry into the mesne
profits. Therefore, we answer point Nos. 2 and 3 in the affirmative.
As to Point No. 5 :
17) On perusal of impugned judgment, it appears that, after
considering oral and documentary evidence before it, the learned trial
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court has rightly decreed the suit. It is based upon the proper appreciation
of the evidence and the facts as per the written agreement between the
parties. Therefore, there is no any error or infirmity appeared in
impugned judgment which requires the interference of this court.
Therefore, we answer point No. 5 in negative and accordingly we pass
the following order for the point No. 6 :
ORDER
1) This appeal is dismissed with costs.
2) The judgment and decree dated 07.03.2024 passed in
L.E. & C. Suit No. 49 of 2020 is hereby confirmed.
3) Decree be drawn up accordingly.
4) Record and proceeding be sent to Record
Department.
5) Inform the learned trial court accordingly.
I Agree,
(A.S. Khadse) (D.R. Mali)
Addl. Chief Judge Judge,
C.R. No. 31 C.R. No. 31
10.09.2024 10.09.2024
Judgment dictated on : 10.09.2024.
Judgment checked & signed on : 13.09.2024.
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