Interim Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
( BANDRA BRANCH)
ORDER BELOW EXHIBIT10
IN
L. E. SUIT NO. 128 OF 2022
(CNRMHSCA30012092022)
1. Mr. Sunit M. Khajanchi (HUF)
through its Karta Sunit M.
Khajanchi & Anr. ...Plaintiffs
Versus
Mr. Pawankumar Kubernath Gupta ...Defendant
Vidya Bandekar, …..learned Advocate for plaintiffs.
Manoj Bhargav, …..learned Advocate for defendant.
Coram : P. K. Kharate,
Judge, C. R. No. 35,
Date : 18th March, 2023.
ORAL ORDER:
1. The plaintiffs have filed present application stating that
they have filed suit for eviction against the defendant. There is a
registered Leave and Licence agreement dated 11.01.2020 which is
expired 14.01.2023 by efflux of time. Moreover, the plaintiffs have
already issued notice of termination of agreement on 03.03.2022.
The defendant has filed L. D. Suit No. 122 of 2022 to delay the
possession of the suit premises.
2. The plaintiffs further averred that the defendant was put
in possession of the suit premises for the period from 15.01.2020 to
14.01.2023 on payment of monthly license fee of Rs. 90,000/ per
month and refundable security deposit of Rs. 16 Lacs. The defendant
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first time paid amount of Rs. 2,29,000/ on towards licence fee in the
month of January 2021. Hence, the plaintiffs prayed that till October
2022, there is default in arrears of licence fees is of Rs. 19,62,387.50
along with 15% simple interest and also liable for water charges of
Rs. 44,082/ Moreover, the plaintiffs also claimed damages as per
clause 11 of Leave and Licence agreement. Hence, the plaintiffs
prayed to direct the defendant to pay Rs. 20,06,469.50 as a licence
fees along with damages.
3. The say filed by the defendant vide Exhibit19. The
defendant averred that there is similar application in L. D. Suit. The
defendant denied that the licence is terminated by notice dated
03.03.2022 because after the said notice, there was meeting between
both parties and issue regarding payment of compensation was
resolved amicably. The defendant was put in possession till
completion of ten years as agreed between both parties. It is admitted
by the defendant that the monthly licence fees is Rs. 90,000/ per
month. The defendant has paid Rs.20,03,000/ till November 2022.
The defendant has paid excess Rs. 2,93,000/ to the plaintiffs. The
defendant denied the remaining things. Hence, defendant prayed to
reject the application.
4. Heard both sides at length. Perused the records and
proceedings.
5. Following points arise for my determination. I have
given my findings thereon for the reasons stated as follows:
Sr.
Nos.
Points Findings
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1. Whether the plaintiffs are
entitled to claim the amount
mentioned in the application ?
Partly affirmative
2. What order ? As per final order
6. In the present case, the suit is filed by the plaintiffs in
the capacity of Licensor. Hence, it is necessary to see the Order XVA
of C.P.C
I perused Order 15(A) of C.P.C. which states as below:-
“XV-A- Striking off Defence in a Suit by a Lessor [1] In
any suit by a lessor or a licensor against a lessee or a
license, 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 license 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”.
7. On perusal of order 15(A), it appears that the licensor
should file the suit for eviction against the licensee. In the present
case, the plaintiffs have filed suit for eviction along with license fees.
8. In the present case, the plaintiffs have filed on record the
copy of the registered Leave and Licence Agreement between both
parties. On perusal of said Leave and Licence agreement, it appears
that the agreement is executed on 11.01.2020 for the period of 36
months starts from 15.01.2020 till 14.01.2023 for a consideration of
Rs.90,000/ per month along with refundable deposit of Rs.
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16,00,000/. In the present case, on perusal of application, it appears
that the plaintiffs are claiming that defendant has paid only Rs.
2,29,000/ towards the licence fee in the month of January 2021.
9. The advocate for the plaintiffs brought my attention to
clause No.10 of the agreement in respect of cancellation of
agreement in default of in regular payment. Moreover, as per clause
11, the defendant should hand over the possession immediately after
the expiration and termination of the agreement. The plaintiffs have
already issued notice on 03.03.2022 about the termination of the
Leave and Licence Agreement. It is no doubt that after issuing the
notice, there was compromise between both parties in respect of suit
premises and which is shown through ExhibitD of dated 13.04.2022
filed by the plaintiffs.
10. In the present case, the defendant specifically filed on
record the dates along with amount on specific date transferred in
RTGS in the account of plaintiffs. There is a dispute about the cash
paid by the defendant. It is a matter of evidence whether the notice is
letter of intimation or letter of termination considering the recitals in
the notice. Hence, at this juncture, it is better to direct the defendant
to deposit the licence fees from month of November 2022 at the rate
of Rs. 90,000/ per month in the court.
11. In the present case, on perusal of entire facts, it appears
that there is also dispute between both parties in respect of cash paid
by the defendant to the plaintiffs i.e. Rs. 6,20,000/. Hence, it is
necessary to direct the defendant to deposit said Rs. 6,20,000/ in the
court. The said amount will not be allowed to withdraw the plaintiffs
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till decision of the suit as it is matter of evidence whether said
amount paid by the defendant in cash or not.
12. In the present case, the advocate for the plaintiffs relied
on Writ Petition No. 9952 of 2018 in the case of Ida Celene
Mathias and Ors. Vs. Mobin Ahmed Khan. The advocate for
defendant also relied on Review Petition No. 28 of 2022 in Mobin
Ahmed Khan Vs. Ida Calene Mathias and Ors. Both are argued
considering the para 11 of the Leave and Licence Agreement. But in
the present case, it is disputed fact that the notice of plaintiffs is
whether notice of intimation or notice of termination. Hence, above
citation is not applicable in the present case.
13. The learned advocate for the plaintiffs relied on citation
of Hon'ble Bombay High Court in the case of Colaba Central Co
operative Consumer Wholesales and Retail Stores Ltd. Alias
Sahakar Bhandar Vs. Kusumben Kantialal Shah reported in 2004
(1) Bom. C. R. 547. The Hon'ble Bombay High Court held that Order
15A, Rule 1 applies to the suit by Licensor against the licensee for
eviction suit.
14. In the present case, the suit is filed by the plaintiffs as a
Licensor for eviction of the suit premises. Hence, above citation is
applicable in the present case. Hence, the plaintiffs are entitled for
disputed amount.
15. The learned advocate for the plaintiffs relied on citation
of Hon'ble Bombay High Court in the case of TCL Talenet Solutions
Pvt. Ltd. Vs. Milliennium Motors Pvt. Ltd., reported in 2013(2)
Bom. C. R. 85. On perusal of said citation the Hon'ble High Couirt
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held that it is proper to deposit the licence fee at the agreed rent
amount. In the present case also, the plaintiffs are entitled for
Rs.90,000/ per month as per Leave and Licence Agreement but from
the November 2022.
16. The learned advocate for the plaintiffs relied on citation
of Hon'ble Bombay High Court in the case of Indiabulls Properties
Pvt. Ltd., Vs. Treasure World Developers Pvt. Ltd., reported in
2014(4) Bom. C. R. 76. The said citation is in respect of damages in
breach of terms of clause of Leave and Licence agreement. But I have
already discussed that it is a matter of evidence whether notice of
plaintiffs is for intimation or termination. Hence, above citation is not
applicable in the present case.
17. The learned advocate for the defendant relied on citation
of Hon'ble Bombay High Court in the case of E. Leslie and Co. Vs.
Vaividhya Print Crafts and others reported in 2008(6) Mh. L. J.
410. The Hon'ble Bombay High Court held that even after the
termination of licence the defendants tendered compensation then he
has also accepted licence fees. Then it may be said that licence
continued on those days.
18. In the present case, after issuing alleged termination of
notice by the plaintiffs dated 03.03.2022, there are settlement talks
between both parties. Moreover, on perusal of recital notice, it
appears that whether it is notice of intimation or notice of
termination. But at this juncture, it cannot be decided said issue.
Hence, above citation is not applicable in the present case.
19. The learned advocate for the defendant relied on citation
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of Hon'ble Bombay High Court in the case of Maharashtra Jeevan
Pradhaikaran through its Member Secretary and another Vs. Lark
Construction P. Ltd., reported in 2005 (3) Bom.C. R. 440. The
Hon'ble High Court held that to preserve and protect interest in
property in suit and protect interest of parties by preserving certain
properties till final disposal of case.
20. In the present case, present application is in respect of
under Order 15A part 1 I..e only claiming only licence fees. There is
no any prayer or application of injunction. Hence, above citation is
not applicable in the present case.
21. I have already discussed that there is dispute about cash
deposited by the defendant. Hence, it is better to order the defendant
to deposit the said cash which is paid as an license fees to avoid
further complications. Moreover, it is admitted by the defendant that
there is Licence fees of Rs. 90,000/ per month. Hence, considering
above discussion, it is necessary to partly allow the application.
Hence, I have recorded my findings to Point No. 1 in partly
affirmative and pass the following order as to Point No. 2:
: O R D E R :
1. The application below Exhibit 10 is partly
allowed.
2. The defendant is hereby directed to deposit Rs.
6,20,000/ as arrears of license fees in the court
till next date and plaintiffs are not allowed to
withdraw the said amount till decision of the suit.
3. The defendant is directed to deposit arrears of
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license fees of Rs. 90,000/ (Rupees Ninety
Thousand only) from November2022 till March
2023 within a month from the date of this order
in the court without prejudice to the rights and
contentions of both parties.
4. The defendant is hereby directed to continue to
pay Rs. 90,000/ per month as licence fees from
April 2023 on prior to 10 th day of each English
Calender month till disposal of the suit without
prejudice to the rights and contentions of both
parties.
(Dictated and pronounced in Open Court.)
Bandra Mumbai. ( P. K. Kharate )
Date : 18.03.2023 Judge, C. R. No.35
Order dictated on computer : 18.03.2023
Order checked & signed on :18.03.2023
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