1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3031 OF 2007 IN SUIT NO.1969 OF 2007 Shiv Vaibhav Madhyawarti Sahakari Bhandar Ltd. ....Plaintiff V/s. Arvind P. Gogri ....Defendant Mr.P.G. Karande with Mr.Vijay S.Kokitkar for the Plaintiff. Mr.Shailesh Shah i/b Ms.Indira N. Vira for the Defendant. CORAM : S.J. VAZIFDAR, J. DATE : 4TH NOVEMBER, 2009. P.C. :- 1. The suit is filed for possession of a suit shop admeasuring 750 sq.ft. and for mesne-profits. The Notice of Motion is for an injunction and for an order directing the Defendant to pay a sum of Rs.25,000/- per month. 2. It appears that there were two Liquidators appointed in respect of the Plaintiff – society. One of the Liquidators executed an agreement on behalf of the society with the Defendant permitting the Defendant to conduct the business of selling ration articles. Clause 1 of the agreement reads as under :- “1. The Supervisor shall conduct the said business of selling Ration Articles till the tenure of his 2 services which shall be decided by the Bhandar or its liquidator. In the first instance the tenure will be for a minimum period of Two (2) year from 1st April, 1990.” 3. The Defendant adopted proceedings before the Bombay City Civil Court restraining the Plaintiff from taking action except by due process of law. The plaint, I am informed, was returned for being presented to the appropriate Court. A similar proceeding had been filed before the Small Causes Court which was decreed. The Appeal Bench of the Small Causes Court however, reversed the judgment and decree. The Writ Petition filed by the Defendant being Writ Petition No.445 of 2006 was by an order dated 6.2.2006, allowed to be withdrawn. The order records the Defendant’s statement that he would like to pursue further remedies if available. It appears that another Writ Petition, being Writ Petition No.1530 of 2005 was also filed by the Defendant. This Writ Petition was disposed of in view of the Plaintiff’s statement that it had decided to file a suit for eviction and that the Defendant would not be evicted without following due process of law. The Plaintiff has done so by filing the present suit. In the interim application filed in the Small Causes Court, a sum of Rs.5000/- was fixed as payable by the Defendant. 4. Prima-facie therefore, the agreement between the parties even assuming that the same was validly entered into has come to an end. Even assuming that the judgment of the Small Causes Court does not operate as an issue estoppal, prima-facie the rights of the Defendant were only under the said agreement dated 1.4.1990. Admittedly, neither the Liquidator nor the Plaintiff has decided the tenure as required under clause 3 1 set out above. However, the clause does provide that the tenure would be for minimum period of two years from 1.4.1990 and the amounts had been accepted by the Plaintiff even thereafter. 5. In the facts and circumstances of this case, the ends of justice would be met by the following order :- i). Mr.Shah’s statement in paragraph 7 of the written statement is accepted. The undertaking contained thereunder is accepted. Pending the hearing and final disposal of the suit, the Defendant shall not dispose of, alienate, encumber, part with possession of or create any third party right, title and/or interest in, to, upon or in respect of the suit premises. ii). Pending the hearing and final disposal of the suit, the Defendant shall deposit in this Court a sum of Rs.9000/- per month on or before 10th day of each month commencing from 10.12.2009. For the period upto the month of November, 2009, an amount of Rs.5000/- which is presently being paid shall be paid. The Notice of Motion is accordingly disposed of.