- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 771 OF 2007 IN SUIT No. 470 OF 2007 Jamni S. Ramchandani ... Plaintiff Vs. Associated Bombay Cinemas P. Ltd. ... Defendant *** Mr. Pravin Samdhani, Sr. counsel a/w Mr. S. Shah i/b M/s. Prakash & Co., for the Plaintiff. Mr. Dhakephalkar, Sr. counsel a/w Ms. Mahek Bookwala i/b M/s. Dhru & Co., for the Defendant. *** CORAM : S. J. VAZIFDAR, J. DATE : OCTOBER 5, 2009. PC :- 1. The suit is filed for specific performance of an agreement dated 14th August 1997. The Notice of Motion seeks the usual reliefs of the appointment of a Court Receiver and for an injunction, in a suit of this nature. 2. By the said agreement dated 14th August 1997 the defendant let to the plaintiff on monthly tenancy, commencing from the date of possession and grant of occupation certificate, shop no.5 admeasuring 451 sq. ft. on the ground floor of the - 2 - structure proposed to be constructed by the defendant as per the plans to be sanctioned, on the land described therein at the monthly rent of Rs.625/- per sq. ft. A sum of Rs.1,00,000/- was as agreed paid on the execution of the agreement, as a security deposit. The rent of Rs.625/- per sq. ft. was payable on or before the fifth day of every month in advance. The other terms and conditions of tenancy were also stated therein. I will record the relevant clauses while dealing with the submissions. It is important to note that after the agreement was entered into, the premises were identified by the defendant itself. This is clear from the letter dated 19th February 1999 under cover of which the plaintiff was furnished a plan, indicating and specifying the suit shop. The same is demarcated in red on the said plan. 3. Suffice it to note at this stage that thereafter by a letter dated 8th December 1998 the defendant informed the plaintiff that there was delay due to the several permissions which were required to be obtained for the change of user and that as a result thereof the expenses had also increased. The defendant stated that it had decided to dispose of the units in the proposed building on ownership basis and that the plaintiff’s tenancy therefore, was also required to be changed accordingly. The defendant fixed a sum of Rs.2,500/- per sq. ft. for converting the tenancy rights to ownership rights. 4. It is submitted on behalf of the defendant that the letter dated 8th March 1998 constituted a refusal to perform the agreement dated 14th August 1997. As the suit is filed beyond three - 3 - years from the letter dated 8th December 1998, the suit is barred by limitation. 5. It is difficult to accept this contention at this stage. The tenancy rights had already been created although as I will presently indicate the agreement still had to be performed by putting the plaintiff in possession. Further although the letter is not so worded, it is obvious that the defendant had only conveyed a proposal for converting the tenancy rights into ownership rights. 6. It is then submitted that there was no date for the performance of the agreement stipulated in the said agreement. Placing reliance on the judgment of the Privy Council in the case of – (Srimati) Giribala Dasi Vs. Kalidas Bhanja and ors. [A.I.R. 1921 Privy Council 71], it was contended that specific performance of an agreement to grant a lease cannot be decreed unless that agreement either expressly or impliedly fixes the date from which the term is to run. 7. This judgment is of no assistance to the defendant in view of the specific terms and conditions in the said agreement. For instance in Clause-I, it is provided that- “The present structure and such Tenancy as created by the Landlord, will commence only on completion of the structure and obtaining of the Occupation Certificate from the Bombay Municipal Corporation.” It is also relevant to note Clause VIII which reads as under- - 4 - “The Landlord has made it clear to the Tenant that they will obtain sanction of plan and also obtain occupation certificate and after construction and completion of the proposed building as approved and handed over the possession of the said premises to the Tenant in terms of this Agreement.” . The agreement therefore, fixes the date from which the term of the lease is to run namely – upon the completion of the structure and obtaining occupation certificate from the BMC. Further it is the defendant’s obligation to put the plaintiff in possession of the premises upon obtaining the occupation certificate. 8. Mr. Dhakephalkar then submitted that the agreement is in terms terminable and therefore, specific relief thereof cannot be granted in view of section 14(1)(c) of the Specific Relief Act. The submission was based on Clause IV-D which reads as under- “Either party desiring to terminate the Tenancy shall give a full calender month’s written Notice to the other.” 9. I am unable to read this clause as conferring upon either party a unilateral right to terminate the tenancy and for the other party to be bound by the same. The least that must be stated at this stage is that the clause is not so clear as to virtually non suit the plaintiff at the interlocutory stage. Clause-D does not provide the consequences of such termination. Thus, the other party may or - 5 - may not accept the termination. On the other hand, where the parties contemplated or intended the consequences to follow, it was so provided specifically. It is relevant to note Clause H in this regard which reads as under: “In the event the Tenant being found using the premises for unauthorized purpose or contrary to the Law or committing Breach of any of the terms and conditions and covenants herein contained the Landlord shall have the right to terminate the Tenancy by giving one month’s notice in writing to the tenant to rectify the breach within the said notice period the tenancy shall stand terminated and in that event the tenant shall and hereby undertake to handover quiet, vacant and peaceful possession without any hindrance or obstacles of the said premises to the landlord.” 10. Mr. Dhakephalkar sought to explain the same by contending that Clause 4-D operates prior to the plaintiff being put in possession whereas Clause 4-H operates only thereafter. I am afraid that without the benefit of any evidence it is difficult to accept this submission at this stage. There is nothing to suggest that Clause 4-D will not operate after the plaintiff is put in possession. Thus, prima-facie at least whereas Clause 4-D entitles a party to terminate the agreement it does not make the consequences thereof binding on the other party. 11. Prima-facie therefore, the termination by the letter dated 2nd February 2004 is neither valid nor binding on the - 6 - plaintiff. 12. In the circumstances, the Notice of Motion is made absolute in terms of prayer Clause (b). Liberty to the plaintiffs to apply for reliefs in terms of prayer Clause (a) by a fresh Notice of Motion after the defendant obtains the occupation certificate.