Interim Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT-9
IN
L. D. SUIT NO. 122 OF 2022
(CNR-MHSCA-30011142022)
Mr. Pawankumar Kubernath Gupta ...Plaintiff
Versus
1. Mr. Sunit M. Khajanchi & Anr. ...Defendants
Mr. Manoj R. Bhargav, ….learned Advocate for the plaintiff.
Vidya Bandekar, ….learned Advocate for defendants.
Coram: P. K. Kharate, Judge.
C. R. No.35,
Date: 30th September, 2022
ORAL ORDER:
1. The present application is filed by the plaintiff seeking
interim relief against the defendants.
Facts of the present application are as under:-
2. The plaintiff has filed this suit for declaration and
injunction. The plaintiff is lawful licensee of the defendants in respect
of shop premises i.e. Shop No. 33, area admeasuring about 528 sq. ft
(Built Up), Khot Chawl, Ground Floor, Standing on the plot of land
bearing CTS No. 126, L. T. Road, Borivali (West), Mumbai- 400 092
(hereinafter the said premises is referred to as “
suit premises”).
3. The plaintiff averred that defendants on the request of the
plaintiff agreed to let out the suit premises on Leave and License basis
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for the period of three years. Moreover, the said Leave and License
Agreement may be extended upto ten years. The plaintiff further
averred that he has spent Rs. 40 Lac for the interior, repairing and
renovation of the suit premises. But defendants threatened the plaintiff
on 04.09.2022 to pay additional compensation of Rs. 75,000/- per
month to the defendants otherwise defendants threated the plaintiffs to
dispossess forcibly from the suit premises. Hence, plaintiff prayed to
allow the temporary injunction application not to disturb the
possession and also prayed to appoint Court Commissioner for the
factual position of the suit premises.
4. The say filed by the defendants vide Exhibit-15. The
defendants averred that they have filed the L. E. Suit No. 874 of 2022
against the plaintiff. The plaintiff is not interested and intended to
hand over the vacant possession of the suit premises to the defendants
as a Licensor on 14.01.2023. The plaintiff has put in possession of the
suit premises as a Licensee as per the registered Leave and License
Agreement dated 11.01.2020 for the period from 15.01.2020 till
14.01.2023 on payment of monthly license fees of Rs. 90,000/- per
month and refundable security deposit of Rs. 16 Lac. The plaintiff is
in default of payment of license fees. Hence, the defendants had
issued letter to the plaintiff on 03.03.2022 about the termination of the
tenancy. The plaintiff has assured to pay the arrears on 13.04.2022 but
failed to pay the license fees. Hence, he has no right to hold the suit
premises and has no right to claiming injunction. There is huge
amount of arrears of Rs. 14,91,000/- from the plaintiff. Hence, the
defendants prayed to reject the application.
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5. Heard both sides at length. Perused record and
proceedings of the suit.
6. Following points arise for my determination. I have given
my findings thereon for the reasons stated as follows:-
Sr. no. Points Findings
1 Whether plaintiff has
prima facie
case ? In the affirmative
2 Whether the balance of
convenience lies in favour of
plaintiff ?
In the affirmative
3 Whether plaintiff would suffer
irreparable loss, if the injunction
sought is not granted ?
In the affirmative
4 What order ?
The application
is allowed as per
final order.
:: R E A S O N S ::
As to Point Nos. 1 to 3:-
7. All these points are interlinked and inter connected with
each other, therefore, taken for consideration at once their convenient
discussion and to avoid repetition.
8. In the present case, the advocate for plaintiff argued that
there is registered Leave and License Agreement in favour of the
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plaintiff and the period will be over on 14.01.2023 as per the said
Agreement. Moreover, the plaintiff has spent Rs. 40 Lac for the repair
of the suit premises. On perusal of the annexure 'H', it appears that the
defendants have already trying to evict the plaintiff by filing
complaint in the Police Station which is dated 30.07.2022. The
defendants are trying to evict the plaintiff by hook and crook. The
plaintiff has already deposited the arrears of compensation.
9. The advocate for the defendants argued that the period of
license agreement is about to over on 01.01.2023. Moreover, as per
clause 2 of the agreement, the plaintiff should have pay the Rs.
90,000/- per month as a compensation. The defendants have already
filed another suit for eviction by filing L. E. Suit No. 874 of 2022.
Moreover, there is huge arrears of amount towards the plaintiff of Rs.
14,91,000/-. On perusal of Bank statement, it appears that the
defendants have already deposited Rs. 8 Lac on 09.01.2020 and
another Rs. 8 Lac on 07.01.2020. But plaintiff has mentioned the
different theory in the plaint about deposit of Rs. 16 Lac. Hence, the
defendants is not coming with the clean hands. Hence, prayed to reject
the application.
10. On perusal of the documents on record and specifically
agreement, it appears that there is registered Leave and License
Agreement between both parties of dated 11.01.2020. On perusal of
said Leave and License Agreement, the period of Leave and License is
for a period 36 months commencing from 15.01.2020 till 14.01.2023.
It means the Leave and License period is yet not over.
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11. In the present case on perusal of the said Leave and
License agreement, the plaintiff has already deposited Rs.16 Lac as a
security deposit with the defendants. Moreover, on perusal of
photographs, it appears prima facie that plaintiff had spent Rs. 40 Lac
for the interior, repairing and renovation of the suit premises. It is no
doubt that the plaintiff is running the business of Cloth from the suit
premises. Hence, it appears that he has spent much more money for
the interior and repairs of the suit premises. The possession of the
plaintiff is lawful one on the basis of Leave and License Agreement.
Moreover, plaintiff is in possession as a Licensee in the suit premises.
12. In the present case, on perusal of the complaint filed by
the defendants in the Police Station dated 30.07.2022, it appears that
defendants are trying to dispossess the plaintiff from the suit premises.
Hence, it is necessary to protect the possession of the plaintiff at
interim stage.
13. The defendants already filed the L. E. Suit No. 874 of
2022 for eviction against the plaintiff. The defendants have remedy to
obtain the compensation/license fees from the plaintiff in that suit. But
at this juncture, it is necessary to protect the possession of the plaintiff
on the basis of registered Leave and License Agreement. The advocate
for plaintiff argued that he is not going to press the prayer of
appointment of Court Commissioner. Hence, I am not considering the
averment of the plaintiff in the present application about the
appointment of Court Commissioner.
14. Hence, considering above discussions, the plaintiff has
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succeeded to prove
prima facie case in his favour. Balance of
convenience also lies in favour of the plaintiff and he would suffer
from irreparable loss if injunction as prayed is not granted in his
favour. On the other hand, no serious prejudice would be caused to the
defendants by way of an order of temporary injunction. In the result,
the application deserves to be allowed in the interest of justice on the
basis of lawful possession of the plaintiff on the basis of Leave and
License Agreement. Hence, I answer points No. 1 to 3 cumulatively in
the affirmative, and pass the following order to answer point No. 4:-
: O R D E R :
1) Application below Exhibit-9 is allowed.
2) The defendants are hereby restrained from forcibly dispossessing
and taking forcible possession of the suit premises from the
plaintiff and the defendants restrained from interfering and
disturbing the plaintiff's peaceful use, occupation and possession
of the suit premises (
as mentioned in para no.2) by temporary
order and injunction without following due process of law.
3) Costs in cause.
(Dictated and pronounced in Open Court.)
Bandra -Mumbai. ( P. K. Kharate)
Date :30.09.2022 Judge, C. R. No.35
Order dictated on computer : 30.09.2022
Order checked & signed on : 30.09.2022
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