Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
ORDER BELOW EXHIBIT NO. 11
in
L.E. & C. Suit No.87 of 2023
[ CNR No.:- MHSCA3-000878-2023 ]
Mrs. Annie Joseph Almeda … Plaintiff
Versus
Mr. Rakesh Murlidhar Kori … Defendant
Mr. Jayram S. Yadav, Ld. Advocate for the plaintiff.
Mr. Dinesh R. Pandey, Ld. Advocate for the defendant.
Coram : Smt. J. D. Hushangabade
Judge, C.R. No. 40,
Date : 10th December, 2024.
:: ORDER ::
This is an application filed by C.A. of plaintiff for depositing
compensation by the defendant in the court.
2. It is specifically averred in the application that the present
suit has been filed by the plaintiff against the defendant for eviction on
the grounds mentioned in the plaint. The suit premises was given to the
defendant on leave and license basis. As per leave and license
agreement dated 29/04/2015 the defendant has agreed to pay to the
plaintiff a sum of Rs.10,000/- per month as monthly compensation in
respect of the suit premises. The defendant has issued cheque for
compensation but the same has been dishonored as stated in the plaint.
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The defendant is enjoying the suit premises without paying single pai
from the day to execution of leave and license agreement dated
29/04/2015 though the defendant is liable to pay to the plaintiff the
compensation as agreed in the said agreement for the period upto
validity of the said leave and license agreement. The defendant did not
even vacate and hand over the suit premises to the plaintiff and keep on
enjoying the same. The defendant is liable to pay to the plaintiff the
compensation @ Rs.10,000/- p.m. from 1st May, 2015 to 31st March,
2016 amount to Rs.1,20,000/- as per said agreement along with bank
interest.
3. The plaintiff further contended that from 1st April, 2016 the
defendant is in illegal use occupation and possession of the suit
premises and the defendants liable to pay the compensation at
Rs.30,000/- per month from 1st April, 2016 till date amounting to
Rs.26,40,000/- and continue to pay to the plaintiff at same rate of
Rs.30,000/- p.m. or at any other rate this court deem fit and proper till
the defendant hand over the possession of the suit premises to the
plaintiff. The said agreement for leave and license has come to an end
by efflux of time from 1st April, 2016 but for abundant precaution the
plaintiff through her advocate letter/notice dated 24th July, 2023
terminated the said leave and license agreement dated 29th April, 2015
and called upon the defendant to quite, vacate and handover the
possession of the suit premises and also to pay to the plaintiff total
monthly compensation due i.e. Rs.27,60,000/- along with bank interest.
Hence, prayed that this court be pleased to order and direct the
defendant to deposit in this court a sum of Rs.27,60,000/- as
compensation for wrongful use and enjoyment of the suit premises or in
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alternative the defendant be ordered and directed to deposit in this
court the compensation for his wrong use and occupation of suit
premises at any other rate as this court deem fit and proper from 1st
April, 2016 till date. The plaintiff further prayed that this court be
further order and direct the defendant to continue to deposit
compensation @ Rs.30,000/- on 10th day of each succeeding month in
this court till disposal of the suit or in alternative the defendant be
ordered and directed to continue to deposit compensation at any other
rate as this court deem fit and proper. It is further prayed that the
amount as and when deposited by the defendant in this court, the
plaintiff be allowed to withdraw the same from this court.
4. On the other hand defendant objected the present
application by filing reply vide Exh.13 and contended that the present
application is malafide and is lacking in bonafides and therefore the
same is liable to be rejected with costs. The plaintiff has made false
statement in the application and plaint, knowing the same to be false
and therefore the plaintiff is liable to be prosecuted for offense of
perjury, for making false statement on oath in judicial proceedings. At
the further outset the defendant further submitted that the plaintiff has
not stated/disclosed in plaint the defendant is doing business in the suit
premises from suit premises in the year 2008 and on what capacity
doing business from 2008 and therefore plaintiff has filed the present
suit against the defendant on the false ground. The defendant is in
continuous use, occupation and possession of the suit premises from
2008 till date. He was never licensee because he is the purchaser of the
suit premises. Hence, prayed that application to be dismissed with cost.
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5. The plaintiff filed rejoinder vide Exh.14 and therein denied
the whole contention raised by the defendant in toto.
6. Perused application, reply and rejoinder. Heard Ld.
Advocate for plaintiff and defendant.
7. It is case of the plaintiff the suit premises was given to the
defendant on leave and license basis. As per leave and license
agreement dated 29/04/2015 for the period of 11 months effective
from 01/05/2015 to 31/03/2016. The defendant has agreed to pay to
the plaintiff a sum of Rs.10,000/- per month as monthly compensation
in respect of the suit premises. The defendant has issued cheque for
payment of compensation but the same has been dishonored. Since 01st
April, 2016 defendant is in illegal use, occupation and possession of suit
premises. The defendant is enjoying the suit premises without paying
single pai from the day of execution leave and license agreement dated
29/04/2015. Therefore, the plaintiff filed this application and praying
for compensation @Rs.30,000/- per month from 01st April, 2016 till
date of filing of this application amounting to Rs.26,40,000/- and
continue to pay future compensation at same rate of Rs.30,000/- per
month or at any other rate the court deem fit and proper till the
defendant handover the possession of suit premises to the plaintiff.
8. On the other hand Ld. Advocate for the defendant argued
that plaintiff has filed this suit with intention of extorting money from
the defendant. The plaintiff has not disclosed in the plaint that
defendant is doing business in the suit premises from the year 2008 and
on what capacity he is doing business from the year 2008 in the suit
premises. Therefore, the suit liable to dismissed with costs. He further
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contended that the plaintiff wanted to sale the suit premises to the
defendant in the year 2008, the defendant agreed to purchase the suit
premises from the plaintiff for consideration of Rs.9,50,000/-. The
defendant has paid an amount of Rs.2,00,000/- by cash on 03/04/2008
to the plaintiff. The defendant again paid Rs.3,50,000/- by cash to the
plaintiff on 14/05/2008. The balance of amount of Rs.4,00,000/- will
be paid at the time of execution of agreement with the plaintiff. The
plaintiff took Rs.5,000/- for preparing the legal papers of the suit
premise. The plaintiff has not executed Sale Deed even after accepting
the amount of Rs.5,50,000/- towards part consideration. The defendant
was never licensee because defendant is the purchaser of the suit
premises. Due to cordial relation between the plaintiff and the
defendant, the defendant executed leave and license agreement for
taking shop license.
9. Order-15A of Code of Civil Procedure, 1908 provides that
in any suit by a owner/landlord for eviction of an unauthorized
occupant/lessee or for the recovery of rent and future mesne profits
from him, the defendant shall deposit such amount as the Court may
direct on account of arrears of rent and thereafter continue to deposit in
each succeeding month the rent period in the suit as the Court may
direct. The defendant shall continue to deposit such amount till the
decision of the suit unless otherwise directed.
10. In the legal backdrop I have considered rival submissions of
the parties, it appears that it is not disputed that defendant is in use,
occupation, possession, enjoyment of suit premises. There was leave
and license agreement executed between the plaintiff and defendant.
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Defendant admitted that he issued cheque of Rs.20,000/- in the name
of plaintiff.
11. The contentions of the defendant that since 2008 he is
residing in the suit premises. The plaintiff agreed to sale suit premises
to the defendant for consideration of Rs.9,50,000/- and therefore
defendant paid part consideration of Rs.5,50,000/- to the plaintiff but
plaintiff failed to executed Sale Deed in respect of suit premises in
favour of defendant. The defendant executed leave and license
agreement due to cordial relation between them and for taking shop
license. All these contentions of the defendant needs adjudication. The
defendant has to prove above facts by adducing evidence. Hence, at this
stage it is not proper to presume all above said facts while deciding this
application.
12. On the other hand on perusal of leave and license
agreement it appears that there was leave and license agreement for
period of 11 months effective from 01/05/2015 to 31/03/2016
executed between the plaintiff and defendant. The compensation for
use and occupation of the said premises shall be Rs.10,000/- per month
payable every month without fail in advance. On perusal of letter dated
24/07/2023 given by the plaintiff to the defendant it appears that the
plaintiff recite about leave and license agreement dated 29th April 2015
para no.2 of this letter. The defendant in reply to said letter gave letter
to the plaintiff and admitted that he was entered into an agreement on
leave and license basis first time from 01/05/2015 to 31/03/2016. He
has duly signed leave and license agreement dated 29/04/2015.
Considering above said documents it clears that there is leave and
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license agreement dated 29/04/2015 between plaintiff and defendant
and it expired on 31/03/2016. Moreover, the plaintiff terminated leave
and license agreement dated 29/04/2015 through letter dated
24/07/2023.
13. It is case of the plaintiff that the defendant is enjoying the
suit premises without paying single pai from the date of execution of
leave and license agreement. The defendant contented that he is not
licensee of plaintiff already paid Rs.5,50,000/- was part consideration
remaining part of consideration will be paid at the time of execution of
sale deed. Therefore, there is no question of payment of monthly
compensation to the plaintiff. As already discussed whether the
defendant purchased the suit premises and gave Rs.5,50,000/- to the
plaintiff towards part consideration of agreement to sell needs
adjudication the plaintiff prima facie shows that there is leave and
license agreement between plaintiff and defendant and defendant failed
to pay monthly compensation as per leave and license agreement since
01st April 2016. Therefore, it clears that defendant is in arrears of
license fee/compensation and enjoying the possession of the suit
premises.
14. Considering fact that the defendant is enjoying possession
of the suit premises, there is leave and license agreement between the
plaintiff and defendant, defendant is in arrears of license
fee/compensation, therefore, the plaintiff is entitled to recover license
fee/compensation from the defendant as per the provisions of Order-
15A of Code of Civil Procedure, 1908.
15. As per leave and license agreement, the monthly
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compensation of Rs.10,000/- was decided. However, the plaintiff
claimed Rs.30,000/- per month from 01st April, 2016 till the filing of
this application for legal use and occupation and use occupation and
possession of the suit premises by the defendant. The provisions of
Order 15A speaks of arrears of rent or license fees or future mesne
profit. Being so what can be ordered to be paid under said provisions of
law are specifically described there under and those powers do not
include power to order payment of damages during the pendency of suit
between licensor and licensee on the claim that leave and license
agreement is terminated. Though the plaintiff has prayed for
Rs.30,000/- per month towards compensation but it is not proper to
decide and grant damages as such during the pendency of the suit, at
this premature stage.
16. Considering leave and license agreement it is proper to
grant compensation of Rs.10,000/- per month to the plaintiff for three
years prior to the issuance of notice till the filing of this application. It
appears that plaintiff issued letter to terminate tenancy on 24/07/2023.
Considering date of issuance of letter, the period of three years prior to
said notice starts from 24/07/2020. Therefore, I am of the view that
defendant shall liable to deposit license fee/compensation of
Rs.10,000/- per month from 24/07/2020 till the date of this order and
continue to deposit Rs.10,000/- per month to each succeeding months
the license fee/compensation as per leave and license agreement dated
29/04/2015. Considering the nature of the suit, as the plaintiff filed this
suit for recovery and arrears of license fee/compensation and filed this
application for interim compensation. In my view it is necessary to
allow to plaintiff the arrears of compensation deposited by the
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defendant. On the other hand as the application is granted without
prejudice to the rights and interest of the parties, therefore, no hardship
caused to the defendant if the plaintiff is allowed to withdraw the
compensation. Hence, I proceed to pass the following order.
:: O R D E R ::
1. Application at Exh.11 is partly allowed.
2. The defendant shall deposit license
fee/compensation of Rs.10,000/- per
month as per leave and license
agreement dated 29/04/2015 from
24/07/2020 till the date of this order
within 2 months in the court.
3. The defendant shall continue to deposit
Rs.10,000/- per month to each
succeeding months the license
fee/compensation as per leave and
license agreement dated 29/04/2015.
4. The plaintiff is allowed to withdraw the
amount of compensation as and when
deposited by the defendant in the court.
5. Both parties to take note of this order.
6. No order as to costs.
( J. D. Hushangabade )
Date : 10/12/2024. Judge, C.R. No. 40
Order dictated & Typed on : 10/12/2024.
Order checked & signed on : 16/10/2024.
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