1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2725 OF 2007 IN SUIT NO.1843 OF 2007 ARVIND S. TUCKER ..PLAINTIFF VS. SUNIL BHARGAV SAGVEKAR ..DEFENDANT Mr.M.M.Vashi for the Plaintiff Mr. Rohan Ambekar i/b R.D.Thorat for the Defendant CORAM: SMT ROSHAN DALVI, J. DATED: 12 th March, 2009 P.C.: 1. The Plaintiff was the licensee / tenant of the Defendant under Leave and Licence Agreement dated 01.10.2001. The Defendant claims that the Plaintiff was the licensee. The Plaintiff claims that he was the tenant. The Plaintiff was in possession under the said agreement. The Plaintiff admittedly continued in possession until about March 2007. 2. The Defendant gave notice to terminate the Leave and Licence Agreement on 18.10.2006. The Plaintiff replied to the notice on 31.10.2006. 2 3. The Plaintiff claims that the Plaintiff has been dispossessed from suit premises on 02.04.2007. 4. On 24.03.2007 the Plaintiff's Advocate has addressed a complaint to the Senior Inspector of Police, Versova Police Station about the alleged act of the Defendant in blocking the Plaintiff entry to the suit premises by parking his car and abusing the Plaintiff. 5. On 31.03.2007 the Defendant admittedly wrote a letter to the Plaintiff under which he stated that the Plaintiff agreed to vacate the suit premises remove his furniture and articles and adjust the security deposit. The receipt of letter is admitted. Precisely when the letter was received is not stated. The letter of Defendant dated 31.03.2007 is not replied. The suit is filed on 04.04.2007 without replying to the last notice of the Defendant. 6. The averment in paragraph 9 of the Plaint runs thus ; ''the Plaintiff states that on 31.3.2007 defendant addressed a letter to the plaintiff calling upon the defendant to vacate the suit premises on 02.04.2007 at about 7.30 p.m.'' 3 7. The Plaintiff has alleged dispossession on 02.04.2007. The date of dispossession is not stated in the plaint. The mode of dispossession as averred in the plaint is that the Plaintiff got the telephone call from his neighbours that the Defendant has broken open the lock and was removing the furniture from the suit premises. When the telephone was received is not stated. When the lock was broken open is also not stated. 8. The Plaintiff claims to have lodged FIR. When it is lodged is not stated. Copy of the FIR is not annexed. Copy of the FIR is not produced before the Court. 9. The Defendant is admittedly in possession of the suit premises. 10. No case for appointment of Court Receiver is made out. Mr. Vashi relied upon a judgment in case of Meghji Jetha Shah Vs. Kalyanji Nanji Shah reported in AIR 1987 Bombay 273. That was the case where ''voluminous evidence'' prima facie proving the Plaintiff's case that he was doing business in the suit premises for number of years was produced. A complaint u/s 145 of the Cr.P.C. before the Magistrate Court was also filed in that case. In this case the Plaintiff's dispossession is not prima facie shown. There is no evidence 4 to show the Plaintiff having continued in possession until 02.04.2007. In view of the fact that notice dated 31.03.2007 is not replied, the voluntary act of the Plaintiff to hand over possession of the suit premises to the Defendant is prima facie seen. 11. Prayer (a) is refused. The Defendant shall not alienate, encumber or part with possession of the suit premises pending the suit. Notice of Motion disposed of accordingly. (Smt Roshan Dalvi, J)