IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION (1) Notice of Motion No.555 of 2007 in Suit No.255 of 2003 and (2) Notice of Motion No.556 of 2007 in Suit No. 234 of 2003. M/s Ashok Commercial Enterprisess and others ..Plaintiffs Vs. TheState Bank of Indore ..Defendants Mr.R.C.Shah with Mr.Hemant R.Haryan i/b Chandani Kumana and Associates for plaintiffs. Mr.G.S.Bhat for defendants. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 8th April, 2008 8th April, 2008 8th April, 2008 P.C. P.C. P.C. 1. These notices of motion are for a direction to the defendant Bank to deposit in this Court a sum of Rs.17,43,006.85 and Rs.19,31,817.80 respectively as per the particulars set out in Exh.D to the affidavits in support to the Notices of Motion. 2. Mr.Shah appearing for the plaintiffs in support submits that the plaintiffs are licensors/tenants of the suit premises and that the defendants approached the plaintiffs with a request that the licence be granted in their favour and that is how the agreement dated 26th February, 1987 with regard to the licence premises have -2- been executed. The defendants occupied about 1440.47 sq.ft. on the second floor of the building more particularly described in the leave and licence agreement on the terms and conditions thereof. It is specifically urged by the plaintiff that clauses in the agreement would demonstrate that liability to pay the property taxes as claimed by Bombay Municipal Corporation is that of the defendants. My attention is invited to clause 13 and other clauses and it is contended that the initial term of the licence expired on 31st January, 1997 and it was renewed till 31st December, 2002 and thereafter till 31st December, 2007. 3. However, on 30th October, 2002 the defendants terminated the licence agreement with effect from 31st January, 2003. The termination is challenged as illegal, wrongful and contrary to the terms of the agreement. That apart, during the course of correspondence, it was pointed out by the plaintiff that premature termination does not mean that liability to pay the amount under the agreement ceases automatically. It is contended that the defendants were bound and liable to reimburse all increases in municipal taxes but they have failed to do so despite several letters from the plaintiffs and it is in such circumstances that the relief is claimed in the suit and -3- more particularly payments of amounts which are set out in Annexure F to the plaint. The relief claimed is on the basis that termination is illegal, that the defendants must specifically perform their obligations under the leave and licence agreement and in the event this Court comes to the conclusion that the specific performance is not permissible, then, decree to pay the sums as more particularly claimed in prayer clauses (d) and (e) to the plaint be granted. 4. The Notices of motion are on the basis that in April, 2006 the plaintiffs received a bill dated 1st April, 2006 from the Bombay Municipal Corporation towards payment of property taxes for a period 1st April, 2006 to 31st March, 2007. Arrears of Rs.74,04,102/- have been claimed. The break up was sought for and that is how it is contended by Mr.Shah appearing for the plaintiffs that major portion of the arrears of property taxes pertain to a period commencing from 1st April, 2000 upto 31st March, 2003. It is in such circumstances that the defendants are bound and liable to make payment of their proportionate share of the property taxes and that share be deposited in this Court. Mr.Shah, therefore, submits that the plaintiffs are not seeking a decree today but upon admitted factual position seeking a direction of deposit in Court. There is no -4- question of the amount being handed over to the plaintiffs . At this stage the amount be deposited and as and when there is a demand from Bombay Municipal Corporation, the plaintiffs would make appropriate application. He relies upon the affidavit filed in the Small Causes Court in Injunction Notice No.478 of 2002 in L.E.and C. Suit Stamp No.1509 of 2002. The Assistant General Manager of the Bank Mr.Kailash Agarwal has stated on oath that the Bank is liable to pay the taxes only upto 31st July, 2003 as per the rates that may be fixed by the Bombay Municipal Corporation. 5. On the other hand Mr.Bhat submits that the notice of motion is misconceived and not maintainable. The plaintiffs have suppressed the fact that for identical relief, a notice of motion was moved and the same was unconditionally withdrawn. Mr.Bhat submits that the leave and licence agreement read as a whole does not indicate that the defendants should make any payment of property taxes. The taxes have to be borne and paid by the plaintiffs. The question in law is of reimbursement in proportion to the licence fee to be paid by the licensee, who is occupying the licensed premises. That apart, the liability to pay taxes is subject matter of the proceedings before the Small Causes Court. The tax appeal -5- has been filed and the same is pending. In such circumstances and considering that the defendants are Nationalised Bank no relief be granted. 6. I have perused the plaint and annexures thereto so also the notices of motion and affidavits in reply and rejoinder. 7. It is undisputed that the Notice of Motion No.201 of 2003 was filed to restrain the defendants from handing over suit premises and withholding the licence fee and other charges alleged to be payable. That notice of motion has been withdrawn. 8. There is much substance in the contention of Mr.Bhat that liability under the subject leave and licence agreement which stands terminated already is to reimburse the plaintiff after they pay the taxes to the local body. The liability is that of the plaintiffs and all that they can seek is reimbursement. The premises are no longer in possession of the defendants and they have handed over the same to the plaintiffs. There is a clear case made out of Rs.15,00,000/- being paid towards municipal taxes in Injunction Notices Nos.755 and 756 of 2002 which the plaintiffs have moved in Small Causes Court. The -6- defendants contend that they have reimbursed the amount after the plaintiffs paid the taxes to the Bombay Municipal Corporation. Apart from the fact that liability is sought to be foisted today after receipt of the bill/demand dated 1st April, 2006, there is substance in the contention of Mr.Bhat that how defendants would be liable to pay additional sums is not clear, from a perusal of the annexures to the affidavits in support of the Notice of Motion. While it is true that the plaintiffs were not satisfied with the communication at Exh.A and, therefore, sought appropriate clarification and break up and on 14th September, 2006 break up has been provided and it is shown that the plaintiffs are in arrears of property taxes to the tune of nearly Rs.74,00,000/- It is clear from the affidavit in support of the Notice of Motion itself that the plaintiffs are seeking a direction to the defendants to pay Rs.15,14,784.83 towards the arrears of property taxes. However, prima facie, it is apparent to me that communication from the Bombay Municipal Corporation does not indicate that the break up that is provided is tenant/licenseewise occupation or their liability for the portion in possession of the Tenant/licensee. That is the quantum with regard to the property taxes for the entire building. There is no material showing defendants share being unpaid till 2003. -7- If the case of the defendants is that they have paid the proportionate share of the property taxes, till they were in use and occupation of the premises and now the entire dispute in the plaint being that termination is unlawful and, therefore, defendants must pay the amount of their share, despite vacating the premises, then, unless and until the plaintiffs prove their case it would not be possible to issue any direction. It is not possible to accept the contention of Mr.Shah that the Notices of Motion are seeking a relief in the nature of payment of admitted sums. Apart from the fact that the liability is disputed it is contended that subject to the final decision of the suit, only increase in taxes till the defendants were in occupation would be claimed. However, whether this amount is in arrears or not is not clear from the plaint and the affidavit in support. There is substance in the contention that the issue of liability is yet to be decided in the suit and, therefore, a money claim of the nature raised by the plaintiffs cannot be secured in the manner sought by them. 9. As of now there is no crystalised sum which could be said to be due and payable. That apart, the issue of payment arise only after the plaintiffs establish that they have paid any amount to Bombay Municipal Corporation -8- towards the taxes. The clauses in the agreement speak of reimbursement and not of payment. Prima facie, therefore, no relief can be granted in the Notices of Motion. Both the notices of motion are dismissed. No costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)