IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 FAO.No. 137 of 2009() --------------------- I.A.2621/2009 IN OS.255/2009 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER-PLAINTIFF ----------------------------------------------------- BHARAT PETROLEUM CORPORATION LTD.HAVING ITS REGISTERED OFFICE AT BHARAT BHAVAN,4& 6,CURRI- MBHOY ROAD, BALLARD ESTATE, MUMBAI-400 001 AND HAVING ITS BRANCH OFFICE AT ERNAKULAM TERRITORY (RETAIL)OFFICE,IRIMPANAM INSTALLATION,KOCHI-682309 REP.BY ITS TERRITORY MANAGER(RETAIL)T.PEETHAMBARAN BY ADV. SRI.N.N.SUGUNAPALAN, SC, BPC SRI.S.SUJIN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------- 1. K.O.JACOB, S/O.OUSEPH, AGED 72 YEARS, KOCHAPPILLY HOUSE, EDAPALLY SOUTH VILLAGE, VENNALA DESOM, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. SIJU JACOB, S/O.K.O.JACOB, AGED 36 YEARS, KOCHAPPILLY HOUSE, EDAPALLY SOUTH VILLAGE, VENNALA DESOM, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. LESLIE GEORGE KOSHIE, S/O.KOSHIE, AGED 41 YEARS, 2F, SWISS HOUSE, VAZHAKKALA, KOCHI-682 031. ADV. SRI.S.CHANDRASENAN (CAVEATOR) THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 137 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 8.4.2009 in I.A. No.2621 of 2009 in O.S. 255 of 2009, the plaintiff before the court below comes up in appeal. 2. The suit was one for specific performance of an agreement and injunction. The first defendant is the owner of the property occupied by the plaintiff. The third defendant was given the dealership. He had offered the plaint schedule property for establishing the fuel outlet. On the basis of an agreement entered into between the third defendant and the plaintiff, structures were installed in the property. Lease was for a period of fifteen years from 1.6.1995 with option to review the lease for another five years. It is claimed that the lease deed permitted the third defendant to sub lease the property. The plaintiff would claim that they had incurred huge expense in commissioning the outlet. The third defendant is only a licensee under the plaintiff. On F.A.O.137/2009. 2 24.12.2008 the plaintiff received a letter from the third defendant stating that he is discontinuing the dealership. The agreement entered into between the plaintiff and the third defendant provided that in case the third defendant wanted to terminate the agreement, he had to give ninety days notice. It is the claim of the plaintiff that they are entitled to continue till 31.5.2015. Apprehending that the third defendant will forcibly evict them, the suit was laid. I.A. 2621 of 2009 was also filed by the plaintiff seeking an interim injunction. 3. Respondents 1 and 2 point out that the suit as well as the petition are not maintainable. The property belong to the first rdefendant and that was leased to the third defendant on 20.11.1995 for running the retail outlet dealership of the plaintiff. When the third respondent expressed his unwillingness to continue the license, the third defendant by letter dated 1.12.2008 informed the matter to the plaintiff. There was no privity of contract between the petitioner and the first respondent. Even assuming that there is any, sub lease is possible only on mutual consent. Pointing out that the plaintiff had no subsisting right, they prayed for dismissal of the petition. F.A.O.137/2009. 3 4. For the purpose of interlocutory application, the court below had Exts.A1 to A11 marked on the side of the plaintiff and Exts.B1 to B3 from the side of the respondents. On a careful consideration of the materials before it, the court below found that the plaintiff had no subsisting right over the suit property and accordingly dismissed the petition. 5. The question that arose for consideration is whether any interference is called for with order of the court below. 6. Learned counsel appearing for the appellant-plaintiff tried to contend for the position that since the lease deed between the first respondent and the third respondent was to be for a period of 15 years with a renewal clause for five years, the plaintiff is entitled to continue in the property till 2015. It was pointed out that the lease deed enabled the third respondent to sub lease. It is also contended that the plaintiff had spent huge amount for installing the Pump and therefore they my be allowed to continue. 7. There is no merit in the above contention at all. As rightly noticed by the court below, there was no privity of contract F.A.O.137/2009. 4 between the petitioner and the first respondent, who owned the property. There is nothing to indicate that there was any agreement between the petitioner and the first respondent, which enables the petitioner to continue in the property. 8. Faced with the situation, learned counsel appearing for the appellant then pointed out that if this court is not inclined to accept the case of the appellant, some time may be granted to them for vacating the premises. 9. Learned counsel appearing for the contesting respondents pointed out that the court below had already granted three months and that itself was sufficient. 10. Considering the short point involved in the suit itself, it was felt that a decree itself could be passed to put an end to the suit. Both sides were agreeable to the same. In the result, the suit is decreed as follows: (i) Plaintiff in the suit will be allowed to continue in the premises till 25.12.2009. (ii) They would have to pay nine months damages for use and occupation of the premises at the rate of Rs.20,000/- per F.A.O.137/2009. 5 month. (iii) Plaintiff shall deposit Rs.1,80,000/- before the court below within one month from today towards damages for use and occupation. (iv) Plaintiff shall file an affidavit before the court below undertaking to unconditionally vacate the premises and hand over vacant possession of the premises to the first respondent on or before 25.12.2009 within one month from today. (v) If condition Nos. (ii) and (iii) are violated, the defendants will be entitled to take recourse to proceedings to evict the plaintiff. (vi) There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.