Final Order 4

Order Details: Copy of Judgment
Pdf Text: Judgment dtd. 20.09.2025 :: 1 :: L.E. & C. Suit No. 143 of 2021
MHSCA30011112021
Presented on : 29.10.2021
Registered on : 17.12.2021
Decided on : 20.09.2025
Period required for disposal
03 Years, 10 Months, 22 days.
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
[BANDRA BRANCH]
L.E. & C. SUIT NO. 143 OF 2021
Ms. Sangeeta Narayan Punjabi
Aged 42 Years, Occ: Business
Residing at A-4, Sindhu Society,
3rd Road, Khar (West)
Mumbai-4000052
Mobile No. 9867057916 .....Plaintiff
VERSUS
Mr. Sairaram Lakhaji Mali
Age: 45 Years Occ: Businees
Address: C/o Flat No. 103,
Building No.3, Shree Nalanda Kurar Village,
Malad (E), Mumbai-400097 ... Defendant
Advocate for the plaintiffs : Y.M. K. Legal
Advocate for defendant : Shri. Manoj R. Bhargav
Coram : Mr. P. P. Naigaonkar,
Judge, C.R. No. 38 (B.B.)
Date : 20th September, 2025
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JUDGMENT :
1. The plaintiff has filed this suit for eviction, outstanding
monthly compensation, damages and for enquiry for determining
mesne profit.
Brief facts of the Plaint
2. The Plaintiff stated that, the she is the owner of Shop no. 11-A
admeasuring 98 sq. ft. carpet area situated on the Ground Floor of
the Building Known as ‘Ellora Co-operative Housing Society Ltd.
(here-in-after referred to as the said "Society”) situated at Plot of
Land bearing CTS No. E-777 at 4th Road Khar West in the revenue
taluka of Andheri, Mumbai- 400052 and holding Certificate No. 36
comprising of 5 fully paid up shares of Rs. 50/- each aggregating to
Rs. 250/- bearing distinctive nos. 126 to 130 (both inclusive) issued
by the said Society duly registered under the Maharashtra Co-
operative Societies Act, 1960 bearing registration No.
BOM/HSG/1797 of 1968. (Here-in-after referred to as "the Suit
Premises") which is bounded as on or towards East- Main Road, on or
towards West- Compound, on or towards South- building, on or
towards North - Bungalow.
3. The Plaintiff stated that, Shri. Narayan T. Punjabi, father of the
Plaintiff who was the erstwhile owner of the suit premises which is
manifest from the details as reflected in the share certificate issued by
the said Society. The Plaintiff states that upon execution of the Gift
Deed dated 27th November, 2019 between the father of the Plaintiff
i.e. Mr. Narayan T. Punjabi, the "Donor" and the Plaintiff the
"Donee", the Plaintiff herein became entitled to the Suit Premises.
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The said Gift Deed is duly registered under serial No. 5603/2019
before the Sub-Registrar of Assurances. Subsequent thereto, Plaintiff
had made an application to the society and society provides
membership to the Plaintiff which is manifested from the details of
the share certificate .
4. The Plaintiff stated that, sometime in and around March 2019,
the father of the Plaintiff i.e. Mr. Narayan T. Punjabi was approached
by the defendant who expressed his desire to take the suit premises
on Leave and License basis to carry out commercial activities in it.
They entered into a Leave and License Agreement dated 29th May,
2019 for a period of 12 months on a monthly license fees of Rs.
1,00,000/- (Rupees One Lakh Only) and Rs. 5,00,000/- (Rupees Five
Lakh Only) as security Deposit amount. The Plaintiff stated that after
execution of the said Agreement, the Defendant was put in use and
occupation of the said commercial suit premises. The Plaintiff stated
that the Defendant is merely a Licensee of the plaintiff's father in
view of the Leave and License agreement dated 29th May, 2019
which is is duly registered under serial No. 2853/2019 before the
Sub- Registrar of Assurances. The Plaintiff stated that, at the time of
execution of the Leave and License Agreement dated 29th May, 2019,
the Plaintiff's Father was the erstwhile owner of the suit premises but
subsequent to the execution of the Gift Deed dated 27th November,
2019 by the plaintiff's father in favour of the plaintiff, plaintiff's
father has transferred his right, title and interest along-with shares in
the suit premises in favour of the plaintiff and the defendant is now
the licensee of the plaintiff.
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5. The plaintiff stated that, the Leave and License Agreement
came to an end on 30th April, 2020 after the period of 12 months and
the plaintiff has given one month prior notice to the defendant. The
plaintiff stated that instead of handing over the possession to the
plaintiff, the defendant has filed R.A.D Suit No. 173 of 2020 in this
Court against the Plaintiff for claiming tenancy rights in the said
premises. It has been specifically agreed between the parties under
the Leave and License Agreement that, no tenancy rights can be
claimed in respect of the suit premises and the defendant has
defaulted in payment of license fees from October, 2020 onwards
which the defendant had agreed to pay, even after the expiry of the
said Leave and License Agreement.
6. The plaintiff stated that her father has already issued a notice
dated 28th February, 2020 for termination of the Leave and License
Agreement and the same has been duly acknowledged by the
defendant. The plaintiff being the owner of the suit premises by
virtue of the gift deed in her favour visited the suit premises on 26th
September, 2020 and called upon the Defendant to vacate the suit
premises on or before 1st October, 2020.
7. The plaintiff has stated that, the defendant has already handed
over the constructive possession of the suit premises vide his
repossession letter dated 03rd March, 2020 duly signed and
acknowledged by him stating that, he has handed over the vacant
possession of the suit premises voluntary and without any coercion
and force, as the defendant promised the plaintiff that he shall be
vacating the suit premises on 3rd October, 2020 and he has even
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cleared the arrears of the license fees till September 2020. Despite
the said repossession letter, the defendant has refused to vacate the
suit premises which shows the frivolous conduct of the Defendant.
8. The plaintiff stated that in the month of October, 2020, after
the defendant signed the repossession letter, the defendant had
changed the name of the said shop from "Mahalaxmi Jewellers" to
"Mahalaxmi Gold" without any prior intimation to the plaintiff and
with a view to unlawfully occupy the suit premises. The plaintiff
stated that, she has approached the defendant multiple times calling
upon him to vacate the suit premises and handover the quiet and
peaceful possession. The Defendant was giving threats to the
plaintiff and unlawfully and illegally occupying the suit premises
without paying the monthly license fees to the Plaintiff .
9. The plaintiff stated that, the suit premises is required by her
reasonably and bona-fide to run her business of ready-made
garments from the suit premises. The defendant has got his own
commercial office at Shop no. 8 in the building known as ‘Ellora Co-
operative Housing Society ltd.’ i.e. the said society and has got
sufficient alternate premises in addition to the suit premises.
Defendant has himself agreed under Clause No. 9 and 10(b) of the
said Leave and License Agreement that he cannot claim any tenancy
right, despite the same, the defendant has filed a suit against the
plaintiff's father who was the owner of the suit premises at the time
of agreement.
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10. The Plaintiff stated that, the defendant is in wrongful
possession of the suit premises and is liable to pay mesne profits to
the Plaintiff from termination of the license i.e. from October, 2020
till the defendant hands over rightful and vacant possession of suit
premises to plaintiff. The Plaintiff estimated the mesne profits Rs.
1,25,000/- (Rupees One Lakh Twenty Five Thousand Only). The
Plaintiff also prayed for decree for mesne profits after inquiry under
Order XX Rule 12 of the Code of Civil Procedure, 1908.
11. The Plaintiff stated that, the suit is between licensor and
licensee relating to the recovery of possession, compensation and
mesne profits / damages for wrongful occupation. Hence, this Court
has exclusive jurisdiction to try and entertain the suit under Section
41 of the Presidency Small Causes Court Act. The suit premises is not
covered under the Slum Clearance Act and the Maharashtra Vacant
Land Act, 1971. The suit is not barred by law of limitation or any
other law. Thus, prayed to decree the suit.
Brief facts of written statement at Exh. 17:
12. The defendant contended that, the present suit is false,
fabricated, misconceived, devoid of any merits, without cause of
action, not maintainable, filed with a view to harass this defendant.
The plaintiff has suppressed the material facts from this court. The
Plaintiff has failed to give the particulars about when the cause of
action occur. The Plaintiff has not described the suit premises
properly. The Plaintiff has not approached this Court with clean
hands.There is no identification of the suit premises or suit property
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described by the Plaintiff in the plaint. Plaintiff has no case for
passing decree of eviction. The present suit filed by the Plaintiff is just
with a view to extort the money from the Defendant. The Plaintiff has
failed to produce the documents to substantiate her claim about her
ownership/landlord of the Property where the suit premises is
situated. The plaintiff failed to establish the relationship of landlord
and tenant, therefore this Court has no jurisdiction to try and
entertain this suit. The present plaint is liable to be rejected under
order 7 rule 11 of CPC as there is no cause of action. The Plaintiff has
not described the suit premises properly. The present suit is barred by
law of limitation.
13. The defendant is not aware that, Plaintiff is an owner of the
shop premises and further denied the description of the suit premises.
Defendant has information that said Narayan T. Punjabi is the owner
of the suit premises and as the defendant and Narayan Punjabi were
having very close relation in all respect including the finance, he uses
to take the money from defendant as and when required. Defendant
is not aware about the Gift Deed dated 27th November 2019 and
denied that plaintiff become entitled to the suit premises. Defendant
is not aware about the membership of the plaintiff. The defendant
denied that, around March 2019, the defendant approached the
deceased father of the plaintiff to take the suit premises on Leave and
License basis. The Defendant contended that, he was/is in possession
of the suit premises since last several years as proposed purchaser, as
the deceased father of the Plaintiff used to take money from
defendant from time to time and said deceased himself offered to sale
the suit premises to the plaintiff and against the same, he had taken a
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total sum of Rs. 18,70,000/- by cheque/Transfer. Further, he used to
take even cash from the defendant for which defendant has made an
entry in the book maintained by him. The defendant denied the said
Leave and Licence Agreement and several pages of said agreement
are not legible.
14. The defendant denied that, he is merely a ‘licencee’ of
plaintiff’s father in view of Leave and Licence Agreement dated 29th
May 2019 wherein defendant is denoted as a ‘licencee’ and father of
the plaintiff as a ‘licensor’. The defendant specifically denied that, in
view of Gift Deed dated 27th November 2019, the defendant is now
the licencee of the plaintiff. The defendant denied that, he was in
absolute use, occupation and possession of the suit premises for the
period of 12 months as set out in Leave and Licence Agreement. The
defendant denied that, subsequently, said Leave and Licence
Agreement comes to an end on 30th April 2020 and the plaintiff has
given one month notice in advance to the defendant. The defendant
contended that, since there was an oral agreement to sale between
the deceased father of the plaintiff and defendant, the father of the
plaintiff had agreed to sale the suit premises to the defendant for a
valuable consideration of Rs. 60,00,000/- and against the said total
consideration, the plaintiff has paid a total sum of Rs. 18,70,000/- by
cheque/Transfer. As such, the defendant has paid a total sum of
Rs.18,70,000/- as a part payment and balance amount of
consideration was to be paid at the time of registration. The
defendant contended that, he is and was ready and willing to pay the
balance amount of consideration and has tried also, but the plaintiff
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has refused to accept the same. The Defendant contended that as the
father of the plaintiff has expired in between, the agreement could
not be executed.
15. It is also contended by the defendant that, as the plaintiff with
the help of antisocial elements trying to take the forcible possession
from the defendant, hence, he has filed declaratory suit for
injunction. The defendant contended that, in Small Causes Court
there is no provision for filing suit for injunction, in haste, the
defendant filed the said suit for the purpose of injunction only. The
defendant contended that, question of payment of rent and vacating
the suit premises does not arise, as there was an understanding of
sale. The defendant denied that, the plaintiff’s father has already
issued notice dated 28th February 2020 for termination of the Leave
and Licence Agreement. There is no termination and no notice and
in absence of the same, present suit is premature and as such is not
maintainable and liable to be dismissed. Defendant denied that it is
legal obligation on him to vacate the suit premises and also denied
that he has already handed over the possession letter dated 03rd
March 2020 duly signed by him. The defendant contended that Leave
and License Agreement was executed just for the purpose of renewal
of licence and was not to be acted upon. The defendant denied that,
the plaintiff required the suit premises reasonably and bona-fide to
run her business of garments from the suit premises. The defendant
denied that, he is in wrongful possession of the suit premises and
liable to pay mesne profits from termination of licence and to hand
over the possession of the suit premises to the plaintiff Thus, prayed
to dismiss the suit with cost.
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16. The learned Predecessor of this Court has framed the following
issues on 03.10.2023 at Exh. 21 to which, I record my findings for the
reasons as stated below :-
SR.
NOS
ISSUES FINDINGS
1 Does the plaintiff proves
licensor - licensee relationship? -In the affirmative
2 Does the plaintiff prove that
she has terminated leave and
licence agreement of the
defendant in respect of the suit
premises? -In the affirmative
3 Is the plaintiff entitled to get
vacant and peaceful possession
of the suit premises, as prayed
for? -In the affirmative
4 Whether the plaintiff is entitled
of damages, as prayed? -In the affirmative
5 Is the plaintiff entitled to get
mesne profits ? -In the affirmative
6 What Order and decree ? -As per final order.
R E A S O N S
17. The plaintiff has filed his examination in chief on affidavit at
Exhibit-26. In support of his contentions the plaintiff has filed on
record documents at Exhibit-34 to Exhibit-40.
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AS TO ISSUE NOS. 1 TO 6 :
18. All the issues are inter-related to each other, hence, discussion
of these issues are made together in order to avoid repetition. First of
all, the plaintiff has to prove that, there was ‘licensor’ and ‘licensee’
relationship between plaintiff and defendant. Subsequently, the
plaintiff has to prove that, she has terminated the Leave and Licence
Agreement. In view of the same, the plaintiff has filed on record her
evidence affidavit below Exhibit-26. The plaintiff has reproduced all
the contentions made in the Plaint as it is in her evidence affidavit. In
order to substantiate the oral contentions, the plaintiff has filed on
record document of Share Certificate, Gift Deed, Leave and Licence
Agreement, copy of Order dtd. 06.03.2021, copy of termination
notice and copy of re-possession letter dtd. 03.10.2020, copy of order
dtd. 10.10.2023 below Exhibit-34 to 40. It appears that, my learned
Predecessor has passed order below Exhibit-9 on 06.01.2023 and
directed to the defendant to deposit arrears of licence fee @
Rs.1,00,000/- per month for the period from October, 2020 to
December, 2022. It was further directed that, the defendant shall
continue to deposit the licence fee till the final disposal of the suit.
The said Order was not complied by the defendant, hence, the
plaintiff has filed application below Exhibit-22 on 03.10.2023. The
defendant has filed the reply below Exhibit-24. After hearing both the
sides, my learned Predecessor by Order dtd. 13.02.2024 has directed
the defendant to comply the Order passed below Exhibit-9 within
period of one month from today. By Order Clause No. 3 it was also
ordered that, if the defendant did not comply the said Order, his
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defence will be struck off. I have gone through the record of the case
and does not found that, defendant has deposited and complied
Order below Exhibit-9. In view of the same, the defence taken by the
defendant can not be taken into consideration, as stated by the
defendant in written statement filed below Exhibit-17. My learned
Predecessor has framed the issues on 03.10.2023 below Exhibit-21.
In order to substantiate the case, the plaintiff has filed evidence
affidavit below Exhibit-26. The plaintiff has stated that, she is the
owner of the suit premises. The said suit premises was earlier owned
by Narayan T. Punjabi. The Share Certificate Exhibit-34 has been
issued in the name of the father of the plaintiff. The father of plaintiff
by Gift Deed has transferred the suit premises to the plaintiff vide
Exhibit-35. In view of the said transfer, the plaintiff has become the
owner of the suit premises. The plaintiff has also filed on record
Exhibit-36 which is the certified copy of Leave and Licence
Agreement executed between the father of plaintiff and defendant.
On going through the Exhibit-36, it appears that, the said Leave and
Licence Agreement is dtd. 29.05.2019 for a period of 12 months. The
monthly licence fee was agreed between the parties at the rate of
Rs.1,00,000/- per month. An amount of Rs. 5,00,000/- was agreed as
security deposit amount. In view of the said Exhibit- 36, it appears
that, defendant is a licensee of the father of plaintiff. The said
Agreement is duly registered at Sr.No.2853 of 2019 before the Joint
Sub-Registrar of Assurances. The defendant was in absolute use and
occupation of the said commercial premises for a period of twelve
months in accordance with terms and conditions of Leave and
Licence Agreement.
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19. It appears that, the defendant has filed the suit for declaration
bearing R.A.D. Suit No.173 of 2020. In the said suit, interim
application was rejected on 06.03.2021. In order to substantiate this
fact, the plaintiff has filed on record copy of that Order Exhibit-37. It
appears that, the said suit was dismissed. The said suit was dismissed
on 10.10.2023 and compensatory cost of Rs.20,000/- was awarded.
In order to substantiate this fact, the plaintiff has filed on record the
copy of Order below Exhibit-40.
20. As the defendant was defaulter in payment of licence fee, the
plaintiff has issued termination notice dtd. 28.02.2020. The said
document is proved below Exhibit-38. The plaintiff has proved the
contents mentioned in the said notice. It appears that, the defendant
executed the letter dtd. 03.10.2020 which is proved below Exhibit-39
and he will clear the arrears of licence fees till September, 2020.
Inspite of execution of this letter, the defendant has not paid the
licence fee. The defendant has also not vacated the suit premises
despite receiving the termination notice dtd. 28.02.2020 Exhibit-38.
It appears that, the contentions of the plaintiff are supported by
Exhibit-34 to 40. As the defence of the defendant is struck off, the
defendant remained absent for conducting the cross-examination.
Hence, the fact remains that, the contentions of the plaintiff
remained unchallenged. Moreover, the defendant has not turned up
and argued the matter. Accordingly, the arguments of the defendant
were not heard. In view of the above circumstances, I answer Issue
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Nos. 1 to 5 in affirmative and pass the following order for Issue
No.6 :-
:: O R D E R ::
1] Suit is hereby decreed with costs.
2] Defendant is hereby directed to handover the quiet, vacant and
peaceful possession of the suit premises viz Shop No. 11/A, Ground
Floor, Ellora Co-op. Housing Society Ltd., 4th Road Corner, Khar
(West), Mumbai – 400 052 to the plaintiff within period of two
months from the date of passing of decree.
3] The defendant is further directed to pay a sum of
Rs.12,00,000/- (In words, Rupees Twelve Lakhs only) towards
outstanding dues of monthly compensation from October, 2020 to
September, 2021 and further sum of Rs.1,25,000/- per month
towards damages for wrongful occupation of the suit premises from
29.10.2021 till the defendant hand over the vacant and peaceful
possession of the suit premises to the plaintiff.
4] Enquiry be held with respect to mesne profit under Order XX
Rule 12 of Code of Civil Procedure, 1908 from the date of filing of
the suit till getting actual possession of the suit premises.
5] Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(P. P. Naigaonkar)
Judge, C.R. No. 38 (B.B.)
Date : 20.09.2025 Small Causes Court, Mumbai.
Judgment Dictated on : 20.09.2025
Judgment typed, checked and signed on : 24.09.2025
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