-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2968 OF 2005 IN SUIT NO. 2707 OF 2005 Deepak R. Tyagi. ... PLAINTIFF Vs. Smt. Shanta Gopal Shetty and ors. ... DEFENDANTS -------- Mr. S.N. Vaishnawa i/b M/s. N.N. Vaishnawa and Company, Advocate for Plaintiff. Mr. Biren Saraf a/w Mr. Bhandary i/b M/s. Bhandary and Bhandary, Advocate for Defendant Nos. 1 to 5. Mr. Victor Alex Almeida, Advocate for Defendant No. 7. -------- CORAM : R.V. MORE, J. DATE : 04 th February, 2010. P.C. 1. Heard Mr. S.N. Vaishnawa, learned counsel for the plaintiff, Mr. Biren Saraf, learned counsel for defendant Nos.1 to 5 and Mr.V.A.Almeida, learned counsel for defendant No.7. Though the present notice of Motion is filed for several reliefs including restoration of possession of the suit premises and appointment of the Court Receiver under the provisions of Order-40, Rule-1, the learned counsel for the plaintiff submits that he is pressing prayer (c) only under which temporary injunction is claimed against the -: 2 :- defendants from creating third party interest in the suit premises and business thereof, namely, Bharat Bhawan (Mili) Bar and Restaurant, Shop Nos.1, 2 and 3 of Rane Patra Chawl, Ground Floor, Pandurang Budhkar Marg, Near T.V. Centre, Worli, Mumbai - 18 (hereinafter called as "the suit premises"). 2. The plaintiff filed suit under Section 6 of the Specific Relief Act, 1963 for possession of the suit premises, in which the aforesaid Notice of Motion for the reliefs mentioned above is taken out. Admittedly, the suit premises was belonging to Amba Shetty, the predecessor-in-title of defendant Nos. 1 to 5. In the year 1993, the suit premises was given to Jayya Shetty and two others on the basis of conducting agreement. The said conductors had deposited with the defendants an amount of Rs.10,00,000/- towards security deposit and they were further obliged to pay Rs.30,000/- as compensation to the defendants per month. 3. It is the case of the plaintiff that by virtue of the document of leave and licence executed on 18 th February, 2005 between the plaintiff and the defendant No.6, the possession of the suit premises was handed over to him. It is his further case that this -: 3 :- document is executed by the defendant No. 6 in pursuant of the power of attorney executed by Amba Shetty, the predecessor-in-title of the defendant Nos.1 to 5. The plaintiff submits that an amount of Rs.20,00,000/- was handed over to defendant No.6 and out of this, an amount of Rs.10,00,000/- was towards the refund of security deposit paid by Jaya Shetty and two others, the previous conductors of business. He further submitted that on 18 th February, 2005 the possession was handed over to the plaintiff and he thereafter obtained various licences from the competent authority to conduct the business in the said premises by paying various amounts. He also submits that the electricity bill was paid by the plaintiff and the Municipal Corporation has also issued notice of repair to the plaintiff. He relied upon bank statement. He lastly submitted that the documentary evidence relied upon by the plaintiff do show that the plaintiff was in possession of the suit property since 18 th February, 2005, however, he was dispossessed forcibly by defendant Nos.1 to 5 on 2 nd August, 2005 and thereafter, immediately within the period of six months the present suit is filed. He also submitted that the documentary evidence -: 4 :- mentioned above if is considered in proper perspective, it is clear that the plaintiff was in possession of the suit premises and was forcibly dispossessed and therefore, interim injunction as claimed to protect plaintiff’s rights deserves to be granted. 4. Mr. Saraf, per contra, contested the Notice of Motion. He submitted that the power of attorney given to defendant No. 6 by Amba Shetty, the predecessor-in-title of defendant Nos. 1 to 5 was terminated in the month of September, 1994 itself. Even otherwise, said Amba Shetti died on 06 th September, 2001 and therefore defendant No.6 could not have executed the document of leave and licence in favour of the plaintiff. He submitted that the said power of attorney does not authorize defendant No.6 to enter into leave and licence agreement or give the suit property to anybody on the basis of conducting agreement. He submitted that there is no material on record to show that the plaintiff paid an amount of Rs. 20,00,000/- to defendant No.6. He relied upon the affidavit of previous conductors of the business. He submitted that the documents relied upon by the plaintiff do not show his physical possession to the suit premises. In the circumstances, he -: 5 :- claimed that the notice of motion is devoid of any substance and same deserves to be dismissed. 5. Having heard learned counsel for the respective parties and having gone through the pleadings alongwith relevant documents, I do not find any merit in the notice of motion. In order to succeed in a suit under section 6 of the Specific Relief Act, the plaintiff must prove his peaceful possession to the suit premises prior to six months of filing of suit. He must further prove that he was dispossessed forcibly. In order to succeed in the notice of motion he must make out a prima facie case and that in case of refusal of interim relief he will suffer irreparable loss. 6. In the present case, the plaintiff in order to show his possession to the suit premises on the relevant date, relied upon several documents. Alleged agreement between the plaintiff and defendant no.6 is concerned, the same is titled as “leave and licence agreement”. It is executed by defendant no.6 as a constituted attorney of deceased Ambha Shetty. Admittedly, defendant no.6 is the son-in-law and defendant nos.1 to 5 are the children of said Amba Shetty. Deceased Amba Shetty in the year -: 6 :- 1993 had executed a power of attorney in favour of defendant no.6, however, subsequently it was terminated in the month of September 1994. Thus, it is clear that defendant no.6 had no right whatsoever to execute the leave and licence agreement in favour of the plaintiff. Even otherwise also said Amba died in the year 2001 and therefore the power of attorney automatically came to an end in the year 2001. I have perused the power of attorney given to defendant no.6 by the deceased Amba Shetty. The said power attorney does not authorise defendant no.6 to give the suit premises on leave and licence or on the basis of business conducting agreement. In these facts and circumstances, prima facie I am of the opinion that the document on which the suit is based does not create any right in favour of the plaintiff. The leave and licence agreement referred above though makes mention that an amount of Rs.20 lacs was given to defendant no.6 by the plaintiff, however, the plaintiff has not produced any documentary evidence on record to substantiate this payment. It is alleged that the said payment was made in cash. 7. The plaintiff has relied upon various licences issued by the -: 7 :- Health Department of Municipal Corporation. These licences are standing in the name of deceased Amba Shetty and it is alleged that the same are renewed by the plaintiff by making various payments. The bank statement produced by the plaintiff does support his contention that he has paid amounts for renewal of various licences. However, on that basis itself it cannot be concluded that the plaintiff was put in possession of the suit premises by defendant no.6 on 18 th February 2005, especially in the light of documentary evidence produced by defendant nos. 1 to 5. Though the repair notice issued by the Corporation is in the name of plaintiff, it does not disclose the address of the suit premises. 8. The documents relied upon by defendant nos. 1 to 5 also deserve consideration. Page no. 26 annexed to plaint is a copy of the general power of attorney executed by the deceased Amba Shetty in favour of defendant no.6. I have already concluded that on the basis of this power of attorney defendant no.6 could not have created any right in the suit premises in favour of the plaintiff. -: 8 :- 9. There is no dispute that Jaya Shetty, the original conductor has already expired. However, other two conductors are alive. defendant nos. 1 to 5 have filed affidavits of these two conductors. The previous conductors of business in these affidavits have categorically stated that at the end of June 2005 the possession of suit premises was handed over to defendant nos.1 to 5. They have further stated that an amount of Rs.4,40,000/- was paid to them vide a cheque towards the return of security deposit. Admittedly, Jaya Shetty and other two conductors were in possession of the suit premises on the basis of business conducting agreement. defendant no.6 at no point of time was in possession of the suit premises. The affidavit of previous conductors disclose that the possession of the suit premises was handed over to defendant nos. 1 to 5 and not to the plaintiff. 10. Taking overall view of the facts and circumstances into consideration, prima facie I am of the opinion that the plaintiff has failed to prove his possession in the suit premises on the relevant date and on the contrary, defendant nos. 1 to 5 have proved that since June 2005 they are in possession of the suit premises. The -: 9 :- plaintiff therefore fails to make out any prima facie case in his favour and to establish that he will suffer irreparable loss in case of refusal of interim relief. Consequently, the plaintiff fails to make out any case for grant of any interim relief and therefore the notice of motion is rejected. 11. It is expressedly made clear that the observations made hereinabove are prima facie and tentative in nature and made only for the limited purpose of disposing of this notice of motion and the Court deciding the suit shall decide the same independently on its own merits without being influenced by the observations made in this order. [ R.V. MORE, J ]