Order 4

Order Details: Order on Exhibit
Pdf Text: 1 LD1472021Exh15reject.odt
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT 15
IN
L.D. SUIT NO.147 OF 2021
(CNR : MHSCA30013132021)
M/s. Affluence Luxuries and Concierge Pvt. Ltd. … Plaintiff
V/s
Mr. George Francis Castelino and anr. … Defendants
Advocate for the plaintiff : Mr. M. A. Chandan.
Advocate for the defendants : Mr. S. M. Vyas.
Coram : S. D. Chavan,
Judge, C.R.No.37 (B.B.),
Date : 26.09.2022
ORAL ORDER :
The present suit is filed for declaration that Leave and
Licence agreement executed in the year 2016 and on 24.10.2018 and
plaintiff is licensee of the defendants of the suit premises, for
extension of Leave and Licence agreement dated 24.10.2018 for a
period of 24 months starting from 11.12.2021, injunction and for
other reliefs as prayed in plaint para No.23, in which the present
interim application is filed.
2. It is contended that Leave and Licence agreement is
subsisting and that plaintiff is entitled to extend the Leave and
Licence agreement dated 24.10.2018 for a period of 24 months
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starting from 11.12.2021. The plaintiff company spent Rs.30 lakhs on
interior renovation work in the suit premises after defendant's
assured in January 2020 to renew the licence for further 24 months
after the term of agreement expired, which works were completed by
February 2020. Depsite Covid pandemic, there was lockdown since
March 2020, whereby the suit premises was shut down and plaintiff's
business related to travel industry was worst hit, plaintiff paid
compensation as mutually agreed as per revised time line.
3. However, defendants backed out of their commitment to
renew the licence agreement and started pressurising the plaintiff to
vacate the suit premises. The defendants coerced the director of the
plaintiff to execute the writing dated 05.10.2021. In the meantime,
MCGM has issued notice dated 19.07.2021 for demolition of portion
of suit premises that was illegally constructed, leading to tremendous
loss to the plaintiff. The said illegal acts were suppressed from the
plaintiff and the defendants collected compensation from the plaintiff
for about five years for the said illegal construction.
4. In the written statement, defendants have admitted the
Leave and Licence agreement for a period upto 30.09.2021. But, it
was terminated while letter dated 08.03.2021. The defendants
claimed that the plaintiff had sought renewal of an agreement upto
05.12.2021 vide writing dated 05.10.2021.
5. The plaintiff has filed a criminal complaint dated
07.01.2022 against the defendants for direction to Santacruz police
station to register FIR under Section 156(3) for cheating and breach
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of trust committed by the defendants on plaintiff.
6. It is further contended that defendants sent their
hirelings to the suit premises on 07.01.2022, who have put the locks
of the defendants. On the locks of plaintiff that were put on suit
premises by the plaintiff 's directors. Since then, the plaintiff is not
able to enter upon the suit premises. Valuable articles including
expensive mobile phones of the plaintiff are still lying in the suit
premises which are valued upto Rs.50 lakhs. The plaintiff shall refer
and relied upon CCTV footage of the said incidence when the
hirelings of the defendants came to the suit premises as put their
locks on the suit premises. Therefore, plaintiff has filed written
complaint dated 08.01.2022 with the police in respect of said
incidence. As no action was taken, the plaintiff sent reminder letter
dated 07.02.2022 which was delivered to the police station on
08.02.2022. In view of illegal and high handed conduct of the
defendants, it is necessary and expedient that the defendants shall be
directed by way of mandatory order and injunction to remove the
locks put up by defendants on the suit premises.
7. It is further contended that plaintiff apprehended that
defendants may remove the valuable furniture, fixtures and articles of
the plaintiff lying in the suit premises and therefore, court
commissioner needs to be appointed. It is also apprehended that
defendants may with a view to delete the rights of plaintiff in this suit
induct some third party into suit premises. Therefore, injunction
order is necessary. Therefore, plaintiff has prayed for injunction and
appointment of court commissioner, etc. In the same application,
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schedule of amendment is attached. But, no separate application for
amendment is filed. Some documents have been produced on record.
8. By way of reply filed below Exh.16, defendants have
denied each and every allegation leveled against them. According to
defendants Leave and Licence agreement has come to an end and
since then the plaintiff is unlawful occupant in the suit premises
without any right. Hence, plaintiff is not entitled for any equitable
reliefs. The present suit is nothing but to retain illegal possession of
the suit premises by abusing the process of law.
9. It is further contended that defendants have filed LE&C
Suit No.18 of 2022 for eviction of plaintiff. According to defendants,
information received from web site of Registrar office, the plaintiff's
company was incorporated in 2017 with a capital of Rs.1 lakh. Mr.
Arif Shaikh s/o Ibrahim Shaikh is holding 95% shares subscribing
Rs.95,000/ and remaining 5% shares are held by Mr. Kushal Dedhia.
10. It is further contended that as per returns filed with
MCA, the plaintiff company recorded nil revenue in the accounting
year pending March 2018 and Rs.87,000/ for the accounting year
ending March, 2019. Thereafter, no returns have been filed. The
plaintiff's company does not have GST number. It has relevant as the
plaintiff company do not seem to have adequate resource of their
own pay monthly licence fee of Rs.1,46,000/ which was applicable
for third year of Leave and Licence agreement.
11. It is further contended that suit premises opened very
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rarely, not more than once a week and often in the late evening and
night. On such a occasion, men are seen guarding the premises from
outside. Even during such time, the door of suit premises was not
opened even to the office staff of the building cooperative housing
society limited, who comes to deliver the maintenance bill of the
premises and / or any other documents. It is further contended that
the manner in which, the suit premises were used for three years
have led to grave misgivings about nature of activities carried out in
the suit premises and fear that should any incident happen, the
defendants as the owner of the suit premises would be held
responsible and liable for the concerned authorities. On the two
occasions, the licensor got access to the premises by prior
appointment, first on 09.03.2021 to serve notice of termination of the
agreement and second on dated 22.11.2021 to take measurement of
suit premises. It was observed that the premises do not resemble
either a commercial office or shop or show room. The termination
notice is accepted by Malayaka Syed. On second occasion i.e. on
22.11.2021, while taking measurement of the premises, it was
observed that beyond the lobby, there is long passage leading to a
lounge. The condition of suit premises is mentioned in para No.5 of
the reply.
12. It is further contended that defendants have no intention
to renew the Leave and Licence agreement and have repeatedly
called on the plaintiff to hand over and vacant peaceful possession of
suit premises. However, by filing present suit, plaintiff intended to
protect unlawful possession of suit premises by abusing process of
law. Defendants are senior citizens and law abiding people.
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Therefore, they have filed suit for eviction. The present suit is filed to
harass the defendants.
13. It is further contended that despite the termination of
Leave and Licence agreement, plaintiff over stayed in the suit
premises and not handed over possession and therefore, the question
of issuing notice by MCGM and leading the tremendous loss to the
plaintiff does not arise. Thereafter, para wise denials of defendants.
14. In view of rival contentions of parties, following points
arise for my determination and my findings thereon are as under for
the reasons stated below :
POINTS FINDINGS
1) Whether plaintiff has primafacie
case ? No.
2) Whether balance of convenience lies
in favour of plaintiff ? No.
3) Whether plaintiff will suffer
irreparable loss if injunction is not
granted ?
No.
4) What order and decree? Application stands
rejected.
R E A S O N S
15. Heard learned for both sides.
16. Learned advocate Mr. M. A. Chandan for plaintiff
submitted that the present suit is filed under Section 41 of the
Presidency Small Causes Court Act. This court has jurisdiction to
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entertain, try and dispose off the suit. According to him, the plaintiff
company is in settled possession and defendants cannot dispossess
the plaintiff without following due process of law. If injunction is not
granted, then there will be multiplicity of proceedings as well as
plaintiff will suffer irreparable loss which cannot be compensated in
terms of money. Accordingly, he prayed to allow the application. He
relied on judgment of Hon'ble Bombay High Court in the case of
Praful Nyalchand Saghrajka v/s. Dr. Prakash V. Pradhan reported
in 1990 Mh.L.J. 970.
17. Per contra, learned advocate for defendants Mr. S. M.
Vyas submitted that already Leave and Licence agreement is expired.
The possession of plaintiff in respect of suit premises is absolutely
unauthorised, illegal as well as unlawful. So, he cannot protected by
order of injunction. He has drawn my attention towards prayers
made in the plaint and submitted that this court has no jurisdiction to
declare that the Leave and Licence agreement is in existence and this
court has also no jurisdiction to extend Leave and Licence agreement
dated 24.10.2018. He has taken me through entire Leave and Licence
agreement. He further submitted that there is no intention of
defendants to continue or to extend the Leave and Licence
agreement. It is sweet choice of owner to extend the licence or to
renew it. The court cannot direct to defendants to extend the Leave
and Licence agreement. The relief of injunction is not main relief. So,
if the court is not in a position to declare that the agreement dated
24.10.2018 is in existence or this court has no jurisdiction to pass a
decree to extend the Leave and Licence agreement, then interim
application should have to be rejected. According to him, no prima
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facie case is made out. He has drawn my attention towards the letter
dated 05.10.2021 issued by plaintiff to defendants. He has also
drawn my attention towards Court Commissioner's report. He
submitted that at the time of court commission work, the door was
opened by the employee of the plaintiff company by swiping. He
submitted that only on one day, the man was there. No lock was
affixed by the defendants. So no prima facie case is made out. If
order of injunction is granted then defendants will suffer irreparable
loss. The plaintiff company has not paid licence fee. The balance of
convenience lies in favour of defendants. Hence, application be
rejected. He relied on following case laws :
1. Shakeel Ahmed Fateh Mohd. Sundke v/s. Aziz Ahmed
Khan, 2008 (6) BOM CR 333 ;
2. Minoo Rustomji Shroff v/s. Dali Kavasji Gai and anr.,
2008(3) Bom. C.R. 16 ;
3. D.T.T.D.C. v/s. D. R. Mehra, 1996 AIR (Delhi) 351 ;
4. Suresh Malappa Shetty v/s. Spl. Recover Officer and
ors., 2003 (3) Mh. L.J. 248 ;
5. New Shivam Coop. Hsg. Society Ltd. Mumbai v/s.
M/s. Raj Publicity, Bandra (W), Mumbai, High Court
Writ Petition No.12033 of 2018, dated 03.07.2019 ;
6. State of Maharashtra and ors. V/s. Md. Sharif Haji
Sharif and anr., 2008 (3) Bom. C.R. 381 ;
7. Francis Bennadic Dsouza v/s. Andrew alias Jairon
Bennadic Dsouza (dead) by LRs. Lucy Dsouza wd/o
Andrew Dsouza and ors., 2008 BCI 214 ;
8. Maria Margarida Sequeira Fernandes and ors. V/s.
Erasmo Jack De Sequeira (Dead) through LRS.,
(2012) 5 SCC 370 ;
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9. Behram Tejani and ors. V/s. Azeem Jagani, (2017) 2
SCC 759 ;
10. Bento documentary evidence Souza Egypsy (Dr.) and
ors. V/s. Yvetter Alvares Colaco alias Marai Emilia
Yvette Godinho Alvares Colaco and ors., 2006 (2)
Bom. C.R. 465.
There is no dispute about the ratio laid down in above
mentioned case laws.
AS TO POINT NOS.1 TO 3 :
18. All these points are inter connected to each other and
hence, to avoid repetition, I am going to discuss all these points
simultaneously.
19. The first point raised regarding jurisdiction of this court
in respect of declaration and extension of Leave and Licence
agreement. I have gone through the provisions of Section 41 of
Presidency Small Causes Court Acts, 1872. After careful reading of
this provision, it is seen that this court has no jurisdiction to compel
the parties to extend the Leave and Licence agreement. So, I do not
agree with the submission made by learned advocate Mr. M. A.
Chandan for the plaintiff company.
20. I have also gone through Section 52 of Easement Act.
From the said section, it reveals that by way of Leave and Licence
agreement, only give a right to another person or to define member
of other person, a right to do or continue to do in or upon immovable
property of the granter something which would, in the absence of
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such right, the unlawful, and such right does not amount to an
easement or an interest in the property, the right is called the licence.
Admittedly, Leave and Licence agreement dated 13.12.2016 was upto
31.10.2019. The second Leave and Licence agreement dated
24.10.2018 was only for 36 months. That agreement came to an end
by efflux of time. As rightly submitted by the learned advocate for
defendants, the Leave and Licence agreement came to an end and
there is no intention of defendants to extend the Leave and Licence
agreement, then this court cannot compel the parties to extend the
Leave and Licence agreement.
21. From the letter dated 05.10.2021 (para No.4), it is seen
that, 'we hereby agree and undertake to hand over the quiet, peaceful
and vacant possession of the said premises viz. Office No.208 on the
2nd floor of the building Kamla Space situated above Kohinoor
Electronic, Santacruz (W), Mumbai 400 054 to your on or before
05.12.2021, without fail. Against our handing over the vacant
possession of the said premises, you will pay to us the interest free
security deposit of Rs.6 lakhs lying with you, after deducting the costs
of the damages, if any, to the fixtures, fittings, and outstanding
electricity bills / telephone bills, if any, as stated in Clause 11 of the
said Leave and Licence agreement.' The said letter is issued by
director of plaintiff's company to defendants. It clears the intention of
plaintiff. After this letter, the present suit is filed on 21.12.2021. So,
plaintiff is not come before the court with clean hands and
accordingly, he is not entitled for the relief of temporary injunction.
22. As observed earlier, as this court has no jurisdiction to
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compel the parties to renew or extend Leave and Licence agreement,
then interim relief of injunction cannot be granted. No prima faice
case is made out by the plaintiff. If no prima faice case is made out,
then, other points need not to be considered. In this respect, I would
like to rely upon the judgment of Hon'ble Apex Court in the case of
Kashi Math Samsthan and anr. V/s. Srimad Sudhindra Thirtha
Swamy and anr., AIR 2010 SC 296. Accordingly, I answered point
Nos.1 to 3 in the negative.
AS TO POINT NO.4 :
23. In view of my negative findings to point Nos.1 to 3,
application deserves to be rejected. Hence, I make following order :
ORDER
1. Application stands rejected.
2. Separate application for amendment is not
filed. So, prayer of amendment is rejected.
But, plaintiff is at liberty to file separate
amendment application.
3. Costs in main cause.
(S. D. Chavan)
Judge, C.R.No.37 (B.B.)
26.09.2022
Dictated on : 26.09.2022
Checked & signed on : 26.09.2022
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