1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1335 OF 2003 NOTICE OF MOTION NO. 1335 OF 2003 NOTICE OF MOTION NO. 1335 OF 2003 IN IN IN SUMMARY SUIT NO.1047 OF 2003 SUMMARY SUIT NO.1047 OF 2003 SUMMARY SUIT NO.1047 OF 2003 Mahabir M. Urs S/O.Late Shri M.S. Mallaraj Urs. & Ors. ...Plaintiffs Vs. M/s.Mahalaxmi Engineering Works & Ors. ...Defendants ----- Mr.S.C.Naidu with Mr.T.R.Yadav i/b. Mr.C.R.Naidu & Co. for Plaintiffs/Applicants Mr.Piyush Shah for Defendants 1 to 4 CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. DATED: 7TH JULY, 2005 DATED: 7TH JULY, 2005 DATED: 7TH JULY, 2005 P.C. P.C. P.C. 1. The Plaintiff’s father since deceased, had 1. The Plaintiff’s father since deceased, had 1. The Plaintiff’s father since deceased, had entered into a Conducting Agreement with Defendant entered into a Conducting Agreement with Defendant entered into a Conducting Agreement with Defendant Nos.1 to 4 on 31st December, 1970 as their licensee Nos.1 to 4 on 31st December, 1970 as their licensee Nos.1 to 4 on 31st December, 1970 as their licensee for carrying on the Plaintiffs’ father’s business of for carrying on the Plaintiffs’ father’s business of for carrying on the Plaintiffs’ father’s business of manufacturing machineries and machine parts at 35, manufacturing machineries and machine parts at 35, manufacturing machineries and machine parts at 35, Mahalaxmi Bridge, Mahalaxmi, Mumbai-400 035. The Mahalaxmi Bridge, Mahalaxmi, Mumbai-400 035. The Mahalaxmi Bridge, Mahalaxmi, Mumbai-400 035. The Defendants 1 to 4 were to pay royalty of Rs.1162/- as Defendants 1 to 4 were to pay royalty of Rs.1162/- as Defendants 1 to 4 were to pay royalty of Rs.1162/- as per clause 4 of the said Conducting Agreement. They per clause 4 of the said Conducting Agreement. They per clause 4 of the said Conducting Agreement. They were to employ their own staff for carrying on their were to employ their own staff for carrying on their were to employ their own staff for carrying on their business as per clause 9 of the said Conducting business as per clause 9 of the said Conducting business as per clause 9 of the said Conducting Agreement. Agreement. Agreement. 2. The Licence was to be renewed upon the 2. The Licence was to be renewed upon the 2. The Licence was to be renewed upon the defendants, as the Conductors, giving 30 days notice defendants, as the Conductors, giving 30 days notice defendants, as the Conductors, giving 30 days notice of their intention to renew the Licence to the of their intention to renew the Licence to the of their intention to renew the Licence to the Plaintiff’s father, as owner as per clause 12 of the Plaintiff’s father, as owner as per clause 12 of the Plaintiff’s father, as owner as per clause 12 of the 2 agreement. The Plaintiff’s father as the owner was to agreement. The Plaintiff’s father as the owner was to agreement. The Plaintiff’s father as the owner was to renew the licence upon the terms and conditions stated renew the licence upon the terms and conditions stated renew the licence upon the terms and conditions stated in that agreement for a further period of only one in that agreement for a further period of only one in that agreement for a further period of only one year, under the same clause No.12. year, under the same clause No.12. year, under the same clause No.12. 3. A schedule to the agreement shows certain 8 3. A schedule to the agreement shows certain 8 3. A schedule to the agreement shows certain 8 items of machineries, furniture and fixtures in the items of machineries, furniture and fixtures in the items of machineries, furniture and fixtures in the premises in which the Defendants were to conduct the premises in which the Defendants were to conduct the premises in which the Defendants were to conduct the Plaintiff’s father’s business as per the said Plaintiff’s father’s business as per the said Plaintiff’s father’s business as per the said agreement. agreement. agreement. 4. It is the Plaintiff’s case that the Defendant 4. It is the Plaintiff’s case that the Defendant 4. It is the Plaintiff’s case that the Defendant has inducted one Sai Engineering Works, a partnership has inducted one Sai Engineering Works, a partnership has inducted one Sai Engineering Works, a partnership firm and received rent/compensation from the said firm and received rent/compensation from the said firm and received rent/compensation from the said firm, defaulted in payment of the royalty, dishonoured firm, defaulted in payment of the royalty, dishonoured firm, defaulted in payment of the royalty, dishonoured the cheques given towards royalty, put up certain the cheques given towards royalty, put up certain the cheques given towards royalty, put up certain additional construction, removed the Plaintiff’s sign additional construction, removed the Plaintiff’s sign additional construction, removed the Plaintiff’s sign board and represented the B.M.C. that they were the board and represented the B.M.C. that they were the board and represented the B.M.C. that they were the tenants of the Plaintiff’s father. tenants of the Plaintiff’s father. tenants of the Plaintiff’s father. 5. The Plaintiffs filed a Civil Suit No.49/61 of 5. The Plaintiffs filed a Civil Suit No.49/61 of 5. The Plaintiffs filed a Civil Suit No.49/61 of 1992 in the Small Causes Court at Bombay. The 1992 in the Small Causes Court at Bombay. The 1992 in the Small Causes Court at Bombay. The Plaintiffs took out an Interim Notice No.207 of 1992. Plaintiffs took out an Interim Notice No.207 of 1992. Plaintiffs took out an Interim Notice No.207 of 1992. Defendants 1 to 4 made a written endorsement that they Defendants 1 to 4 made a written endorsement that they Defendants 1 to 4 made a written endorsement that they had no intention to part with the premises in favour had no intention to part with the premises in favour had no intention to part with the premises in favour of any third person. The said Sai Engineering Works of any third person. The said Sai Engineering Works of any third person. The said Sai Engineering Works made a written endorsement that it was not in made a written endorsement that it was not in made a written endorsement that it was not in possession of the premises. That suit has been possession of the premises. That suit has been possession of the premises. That suit has been returned to this Court for filing, which is the returned to this Court for filing, which is the returned to this Court for filing, which is the 3 present suit. present suit. present suit. 6. The Defendants are stated to have inducted 6. The Defendants are stated to have inducted 6. The Defendants are stated to have inducted TELCO Ltd. on 1st April, 1995 contrary to the TELCO Ltd. on 1st April, 1995 contrary to the TELCO Ltd. on 1st April, 1995 contrary to the statement made before the Small Causes Court by the statement made before the Small Causes Court by the statement made before the Small Causes Court by the present endorsement. The Plaintiffs claim that they present endorsement. The Plaintiffs claim that they present endorsement. The Plaintiffs claim that they received Rs.60,000/- per month from TELCO for the year received Rs.60,000/- per month from TELCO for the year received Rs.60,000/- per month from TELCO for the year ended 31st March, 1996 and for which TELCO deducted ended 31st March, 1996 and for which TELCO deducted ended 31st March, 1996 and for which TELCO deducted Tax at source of Rs.14,400/- out of the total annual Tax at source of Rs.14,400/- out of the total annual Tax at source of Rs.14,400/- out of the total annual payments of Rs.7,20,000/-. The Plaintiffs have set payments of Rs.7,20,000/-. The Plaintiffs have set payments of Rs.7,20,000/-. The Plaintiffs have set out the details of the TDS challans filed with the out the details of the TDS challans filed with the out the details of the TDS challans filed with the income tax by TELCO. income tax by TELCO. income tax by TELCO. 7. TELCO surrendered the premises on 31st March, 7. TELCO surrendered the premises on 31st March, 7. TELCO surrendered the premises on 31st March, 1998. 1998. 1998. 8. Defendants 1 to 4 thereafter inducted 8. Defendants 1 to 4 thereafter inducted 8. Defendants 1 to 4 thereafter inducted Defendant No.5. Defendants 1 to 4 are stated to be Defendant No.5. Defendants 1 to 4 are stated to be Defendant No.5. Defendants 1 to 4 are stated to be taking rent of Rs.45,000/- from Defendant No.5 in the taking rent of Rs.45,000/- from Defendant No.5 in the taking rent of Rs.45,000/- from Defendant No.5 in the garb of "Income towards labour jobs for servicing of garb of "Income towards labour jobs for servicing of garb of "Income towards labour jobs for servicing of motor cycles." motor cycles." motor cycles." 8. It is contended on behalf of the Plaintiffs 8. It is contended on behalf of the Plaintiffs 8. It is contended on behalf of the Plaintiffs that the servicing of the motor cycles is not that the servicing of the motor cycles is not that the servicing of the motor cycles is not allowable under the terms of Conducting Agreement to allowable under the terms of Conducting Agreement to allowable under the terms of Conducting Agreement to Defendants 1 to 4. Defendants 1 to 4. Defendants 1 to 4. 9. The Plaintiffs further contend that Defendant 9. The Plaintiffs further contend that Defendant 9. The Plaintiffs further contend that Defendant NO.5 is the authorised agent and dealer of Hero Honda NO.5 is the authorised agent and dealer of Hero Honda NO.5 is the authorised agent and dealer of Hero Honda 4 Motor Cycles and that Defendant No.5 sells the said Motor Cycles and that Defendant No.5 sells the said Motor Cycles and that Defendant No.5 sells the said motor cycles. motor cycles. motor cycles. 10. It is contended on behalf of the Plaintiffs 10. It is contended on behalf of the Plaintiffs 10. It is contended on behalf of the Plaintiffs that though certain receipts are passed by and between that though certain receipts are passed by and between that though certain receipts are passed by and between Defendants 1 to 4 and Defendant No.5 they aggregate to Defendants 1 to 4 and Defendant No.5 they aggregate to Defendants 1 to 4 and Defendant No.5 they aggregate to approximately Rs.45,000/- which is in fact the extent approximately Rs.45,000/- which is in fact the extent approximately Rs.45,000/- which is in fact the extent of the rent/compensation received by Defendants 1 to 4 of the rent/compensation received by Defendants 1 to 4 of the rent/compensation received by Defendants 1 to 4 leasing out the premises to Defendant NO.5 contrary to leasing out the premises to Defendant NO.5 contrary to leasing out the premises to Defendant NO.5 contrary to the suit in the Small Causes Court. the suit in the Small Causes Court. the suit in the Small Causes Court. 11. The Plaintiffs have also contended that the 11. The Plaintiffs have also contended that the 11. The Plaintiffs have also contended that the name board of the Plaintiffs "Associated Engineering name board of the Plaintiffs "Associated Engineering name board of the Plaintiffs "Associated Engineering Works" (AEW) is removed and the name board "Hero Works" (AEW) is removed and the name board "Hero Works" (AEW) is removed and the name board "Hero Honda" came to be affixed. The Plaintiffs therefore, Honda" came to be affixed. The Plaintiffs therefore, Honda" came to be affixed. The Plaintiffs therefore, contend that upon such induction Defendant No.5 used contend that upon such induction Defendant No.5 used contend that upon such induction Defendant No.5 used the Plaintiff’s premises for servicing their motor the Plaintiff’s premises for servicing their motor the Plaintiff’s premises for servicing their motor cycles/cars. cycles/cars. cycles/cars. 12. Defendant No.5 filed an affidavit in this 12. Defendant No.5 filed an affidavit in this 12. Defendant No.5 filed an affidavit in this Notice of Motion and made a statement in para No.4 Notice of Motion and made a statement in para No.4 Notice of Motion and made a statement in para No.4 therein that they were not in possession. therein that they were not in possession. therein that they were not in possession. 13. The Plaintiffs thereafter found new parties in 13. The Plaintiffs thereafter found new parties in 13. The Plaintiffs thereafter found new parties in possession. The Plaintiffs amended the suit to add possession. The Plaintiffs amended the suit to add possession. The Plaintiffs amended the suit to add Defendants 6 to 8 who are now stated to be in Defendants 6 to 8 who are now stated to be in Defendants 6 to 8 who are now stated to be in possession of the suit premises, admittedly belonging possession of the suit premises, admittedly belonging possession of the suit premises, admittedly belonging to the Plaintiff. to the Plaintiff. to the Plaintiff. 5 14. The Defendants 1 to 4 contend that they are 14. The Defendants 1 to 4 contend that they are 14. The Defendants 1 to 4 contend that they are the tenants of the suit premises under the same the tenants of the suit premises under the same the tenants of the suit premises under the same agreement of conducting relied upon by the Plaintiffs agreement of conducting relied upon by the Plaintiffs agreement of conducting relied upon by the Plaintiffs and in which respect the suit is filed. and in which respect the suit is filed. and in which respect the suit is filed. 15. It is contended on their behalf that despite 15. It is contended on their behalf that despite 15. It is contended on their behalf that despite the expression of the said agreement they have the expression of the said agreement they have the expression of the said agreement they have continued in possession because it was in fact a continued in possession because it was in fact a continued in possession because it was in fact a tenancy agreement. They therefore, submit that they tenancy agreement. They therefore, submit that they tenancy agreement. They therefore, submit that they are not conducting as shown in the agreement but are not conducting as shown in the agreement but are not conducting as shown in the agreement but tenants of the Plaintiff’s father on the suit tenants of the Plaintiff’s father on the suit tenants of the Plaintiff’s father on the suit premises. They contend that none of these parties premises. They contend that none of these parties premises. They contend that none of these parties being Sai Engineering Works or TELCO or Defendant No.5 being Sai Engineering Works or TELCO or Defendant No.5 being Sai Engineering Works or TELCO or Defendant No.5 or Defendant No.6 are in possession and that they have or Defendant No.6 are in possession and that they have or Defendant No.6 are in possession and that they have continued in exclusive possession since the date of continued in exclusive possession since the date of continued in exclusive possession since the date of the agreement i.e. since 31st December, 1970. They the agreement i.e. since 31st December, 1970. They the agreement i.e. since 31st December, 1970. They claim that machinery mentioned in the agreement was claim that machinery mentioned in the agreement was claim that machinery mentioned in the agreement was sold to them and the lease which was created under the sold to them and the lease which was created under the sold to them and the lease which was created under the said agreement has been extended from time to time. said agreement has been extended from time to time. said agreement has been extended from time to time. Consequently they claim that they have paid increased Consequently they claim that they have paid increased Consequently they claim that they have paid increased monthly royalty and also permitted increases like monthly royalty and also permitted increases like monthly royalty and also permitted increases like municipal taxes. municipal taxes. municipal taxes. 16. They further make a surprising claim that 16. They further make a surprising claim that 16. They further make a surprising claim that under the Plaintiff’s father’s WILL Defendant No.1 was under the Plaintiff’s father’s WILL Defendant No.1 was under the Plaintiff’s father’s WILL Defendant No.1 was "given" the said premises on lease. The WILL is "given" the said premises on lease. The WILL is "given" the said premises on lease. The WILL is stated to be probated. The probate is neither relied stated to be probated. The probate is neither relied stated to be probated. The probate is neither relied upon nor annexed to the affidavit in reply, nor upon nor annexed to the affidavit in reply, nor upon nor annexed to the affidavit in reply, nor produced in the Court. If the Plaintiff’s father had produced in the Court. If the Plaintiff’s father had produced in the Court. If the Plaintiff’s father had 6 created a lease on 31st December, 1970, the bequest if created a lease on 31st December, 1970, the bequest if created a lease on 31st December, 1970, the bequest if any under the WILL would be redundant. If any such any under the WILL would be redundant. If any such any under the WILL would be redundant. If any such bequest is made, it would be only if a prior lease was bequest is made, it would be only if a prior lease was bequest is made, it would be only if a prior lease was not created. A statement or a mention in any WILL not created. A statement or a mention in any WILL not created. A statement or a mention in any WILL stating facts is of hardly any consequence if there is stating facts is of hardly any consequence if there is stating facts is of hardly any consequence if there is no bequest to that end. no bequest to that end. no bequest to that end. 17. Defendants 1 to 4 contend that they are doing 17. Defendants 1 to 4 contend that they are doing 17. Defendants 1 to 4 contend that they are doing job work for these parties. They have contended that job work for these parties. They have contended that job work for these parties. They have contended that they did job work for Defendant No.5. Their Advocate they did job work for Defendant No.5. Their Advocate they did job work for Defendant No.5. Their Advocate states that at present Defendants 1 to 4 are doing job states that at present Defendants 1 to 4 are doing job states that at present Defendants 1 to 4 are doing job work for Defendant No.6. work for Defendant No.6. work for Defendant No.6. 18. It is surprising how defendants 1 to 4 do job 18. It is surprising how defendants 1 to 4 do job 18. It is surprising how defendants 1 to 4 do job work of servicing cars of only one party. If they are work of servicing cars of only one party. If they are work of servicing cars of only one party. If they are in the business of servicing cars for which they are in the business of servicing cars for which they are in the business of servicing cars for which they are in exclusive possession, they would take up job works in exclusive possession, they would take up job works in exclusive possession, they would take up job works of various parties for the business that they carry of various parties for the business that they carry of various parties for the business that they carry on. on. on. 19. The case of Defendants 1 to 4 itself shows 19. The case of Defendants 1 to 4 itself shows 19. The case of Defendants 1 to 4 itself shows that one party at a time has been inducted in the that one party at a time has been inducted in the that one party at a time has been inducted in the premises. A show has been made that Defendants 1 to 4 premises. A show has been made that Defendants 1 to 4 premises. A show has been made that Defendants 1 to 4 carry on job work for that party. carry on job work for that party. carry on job work for that party. 20. Though in respect of all these parties 20. Though in respect of all these parties 20. Though in respect of all these parties documentary evidence of payment of monthly documentary evidence of payment of monthly documentary evidence of payment of monthly rent/compensation cannot be produced by the Plaintiffs rent/compensation cannot be produced by the Plaintiffs rent/compensation cannot be produced by the Plaintiffs since it would be an arrangement with Defendant Nos.1 since it would be an arrangement with Defendant Nos.1 since it would be an arrangement with Defendant Nos.1 7 to 4 and that party, the reference to the TDS challans to 4 and that party, the reference to the TDS challans to 4 and that party, the reference to the TDS challans of TELCO specifically shows that long before the other of TELCO specifically shows that long before the other of TELCO specifically shows that long before the other parties came into the suit premises or had any contact parties came into the suit premises or had any contact parties came into the suit premises or had any contact with the Defendants 1 to 4, the induction by with the Defendants 1 to 4, the induction by with the Defendants 1 to 4, the induction by Defendants Defendants Defendants 1 to 4 in favour of the TELCO was made. 1 to 4 in favour of the TELCO was made. 1 to 4 in favour of the TELCO was made. 21. Primafacie therefore, the Plaintiffs have 21. Primafacie therefore, the Plaintiffs have 21. Primafacie therefore, the Plaintiffs have shown how Defendants 1 to 4 have from time to time shown how Defendants 1 to 4 have from time to time shown how Defendants 1 to 4 have from time to time sought to deal with the Plaintiff’s premises. It sought to deal with the Plaintiff’s premises. It sought to deal with the Plaintiff’s premises. It shall ofcourse, be seen at the time of trial as to shall ofcourse, be seen at the time of trial as to shall ofcourse, be seen at the time of trial as to what precisely was the arrangement between the what precisely was the arrangement between the what precisely was the arrangement between the parties, the agreement of conducting notwithstanding. parties, the agreement of conducting notwithstanding. parties, the agreement of conducting notwithstanding. Until the trial the plaintiff’s premises is required Until the trial the plaintiff’s premises is required Until the trial the plaintiff’s premises is required to be protected. to be protected. to be protected. 22. Under the ad-interim order dated 23rd August, 22. Under the ad-interim order dated 23rd August, 22. Under the ad-interim order dated 23rd August, 2004 in Notice of Motion No.2742 of 2004 the 2004 in Notice of Motion No.2742 of 2004 the 2004 in Notice of Motion No.2742 of 2004 the Defendants have been restrained from transferring or Defendants have been restrained from transferring or Defendants have been restrained from transferring or disposing of or parting with possession or otherwise disposing of or parting with possession or otherwise disposing of or parting with possession or otherwise creating any third party right in the suit premises. creating any third party right in the suit premises. creating any third party right in the suit premises. There after there has