Interim Order 3

Order Details: Order on Exhibit
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CNR No. MHSCA-3001111-2021
IN THE COURT OF SMALL CAUSES, AT MUMBAI.
(BANDRA BRANCH)
Order Below Exhibit 22
In
L. E. & C. Suit No. 143 of 2021
Ms. Sangeeta Narayan Punjabi ….... Plaintiff.
V/s.
Mr. Sairaram Lakhaji Mali …... Defendant.
Advocate for the plaintiff : YMK Legal
Advocate for the defendant : Mr. M.R. Bhargav
Coram : K.M. Kayangude,
Judge, C.R. No. 38 (B.B.)
Date : 13.02.2024
Oral Order :
This is an application on behalf of the plaintiff to strike off
the defence of the defendant for non-compliance of order dated
06/01/2023.
2. It is asserted that the application filed by the plaintiff for
directing the defendant to deposit arrears of license fees from October
2020 at the rate of Rs. 1,00,000/- per month has been allowed by this
Court. The defendant has not complied the said order and therefore,
the plaintiff prayed to strike off the defence of the defendant.
3. The application is contested by the defendant by filing
reply vide Exh. 24. It is asserted that in absence of permanent prayer
in the plaint, the application needs to be dismissed. The provisions of
Rule 5 of Order XV are discretionary and not obligatory. As per oral
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agreement for sale, the defendant has paid amount of Rs. 17,50,000/-.
The aforesaid provision is only applicable to the lessor and lessee as
well as landlord and tenant and when the amount is admitted by the
tenant. The striking of defence is a serious matter and should be passed
after examining all the aspects of the matter. The defendant is in
process of filing the suit for specific performance and hence prayed to
reject the present application. The defendant denied that he is bound
to pay license fees and contended that in view of oral agreement for
sale, the defendant is not liable to pay any amount. Accordingly, he
prayed to reject the application.
4. Heard both sides. It is a matter of record that as per Order
XV-A of the Code of Civil Procedure, 1908, my learned Predecessor was
pleased to allow the application Exh. 9 wherein the defendant was
directed to deposit the arrears of license fees at the rate of Rs.
1,00,000/- per month from October 2020 till December 2022 and
thereafter will go on depositing same amount on or before 10th day of
each month. Admittedly, it is nowhere the case of the defendant that he
has challenged the said order. Therefore, the said order has attained
finality. It appears from the reply of the defendant that he has not
complied with the said order on the ground that there is a oral
agreement for sale in respect of the suit premises and he has already
paid ernest money of Rs. 17,50,000/-. It appears that when the order
was passed below Exh. 9, the suit was proceeded ex-parte against the
defendant. It appears that the defendant filed application Exh. 12 on
17/02/2023 for setting aside ex-parte order which was allowed by
passing order on 20/06/2023. Therefore, it appears from the record
that the defendant is aware in respect of the order passed below Exh. 9
after appearance in the present matter. If at all, the defendant was not
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satisfied with the order passed below Exh. 9, then he was at liberty to
challenge the said order. It appears that the defendant neither
challenged the said order nor complied the said order.
5. At this stage, it is worthwhile to reproduce Order XV-A of
the Code of Civil Procedure, 1908 which reads as under :
“(1) In any suit by lessor or a licensor against a lessee
or a licensee, 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 licence 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.
In the event of making default in making the
deposits, as aforesaid, the Court may subject to the
provisions of Sub-rule (2) strike off the defence.]
(2) Before passing an order for striking off the
defence the Court shall serve notice on the defendant or
his Advocate to show cause as to why the defence should
not be struck off, and the Court shall consider any such
cause, if shown and order to decide as to whether the
defendant should be relieved from an order striking off the
defence.
(3) The amount deposited under this rule shall be
paid to the plaintiff lessor or licensor or his advocate and
the receipt of such amount shall not have the effect of pre-
judicing the claim of the plaintiff and it shall not also to be
treated as a waiver of notice of termination.”
6. In the present matter, admittedly the defendant was aware
in respect of order passed below Exh. 9, he has not complied the said
order. The objection raised by the defendant is that he is in process of
filing the suit for specific performance on the basis of oral agreement.
From the averments in the written statement, it is the case of the
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defendant that there is a oral agreement for the sale of suit premises for
the consideration of Rs. 60,00000/- and out of the said amount the
defendant has already paid Rs. 17,50,000/-. For sake of moment, the
case of the defendant is accepted as it is, still no prejudice will cause to
the defendant if he complies with the order passed below Exh. 9
because if at all the defendant succeeded in suit which he is going to file
for specific performance then the amount deposited as per the order
passed below Exh. 9 can be certainly adjusted towards the consideration
amount.
7. It appears from the record that the defendant is in use of
the suit premises without paying any amount since from October 2020.
The object and the purpose of order XV-A of the Code of Civil
Procedure, 1908 is that the licensee or the lessee who is in use and
occupation of the suit premises shall not continue to enjoy the suit
premises without payment of any money. Therefore, considering the
real object and purpose of the said provision, I am of the considered
view that the defendant needs to comply with order passed below Exh.
9 in its true spirit. As observed above, no prejudice will cause to the
defendant if he succeeded in the suit which he is going to file for
specific performance as the amount deposited can be certainly adjusted
towards the consideration amount.
8. No doubt, the defence of the defendant cannot be struck
out in routine manner. But in the present matter, admittedly the
defendant is enjoying the suit premises without paying any money. The
defendant has not yet filed any suit for specific performance on the
alleged oral agreement between the parties. Therefore, the defendant
cannot be permitted to enjoy the suit premises without paying any
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amount to the plaintiff. There is a registered leave and license
agreement. Therefore, considering all these facts and circumstances of
the present case I am of the opinion that no sufficient grounds are made
out by the defendant in order to refuse the relief of striking off defence
of the defendant.
9. At the same time, taking into consideration the facts and
circumstances of the present matter, that the application Exh. 9 was
decided ex-parte and the defendant raised defence of oral agreement of
sale, I am of the considered view that it is fit to give one more chance to
the defendant to comply the order passed below Exh. 9 with condition
that failure to comply the said order within stipulated period amounts
to striking off the defence of the defendant, then it will meet ends of
justice. In the result, it will be fit to give the defendant one more
opportunity to comply the order within a period of one month.
Accordingly, following order.
:: O R D E R ::
1) Application Exh. 22 is disposed of as follows :
2) The defendant is hereby directed to comply the order
passed below Exh. 9 within period of one month
from today.
3) Failure on the part of the defendant to comply the
order within stipulated period amounts to ordering
striking off defence of the defendant without any
further reference to the Court.
(Dictated and pronounced in the open court.)
sd/-
(K.M. Kayangude)
Date : 13.02.2024 Judge, C.R. No. 38 (B.B.)
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Dictated & Typed on : 13/02/24
Checked & Signed on : 14/02/24
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