1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.166 OF 2010 Vishal J. Bhatia .. Petitioner versus M/s.Batra Industries (I) & Ors. .. Respondents Mr.M.M.Vashi i/by M/s.M.P.Vashi & Associates for the petitioner. Mr.P.M.Shah for respondent Nos.1 and 3. CORAM : A.S.OKA, J. DATE : 30th April 2010. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The parties were put to notice that the petition will be taken up for final disposal at admission stage. 2. The challenge in this writ petition under Article 227 of the Constitution of India is to the judgment and order dated 17th October 2008 passed by the Appeal Bench of the Court of Small Causes in an appeal preferred by the respondents. By the impugned order, the order of temporary injunction passed by the trial Court was set aside. 3. The petitioner is the original plaintiff and the respondents are the defendants. According to the case of the petitioner, there were negotiations between the parties and the petitioner agreed to take factory shed 2 admeasuring 3000 sq.ft, office premises admeasuring 2000 sq ft (office premises having area of 1000 sq.ft was on the ground floor and the area of 1000 sq.ft is on the mezzanine floor) along with surrounding open area admeasuring 5000 sq.ft on tenancy. According to the petitioner, the said premises which are referred to as the suit premises were agreed to be taken by the petitioner on tenancy basis at the rent of Rs.20,000/- per month with deposit of Rs.3,00,000/-. The case made out in the plaint is that the respondents insisted upon execution of an agreement of Leave and Licence instead of tenancy agreement and accordingly, on 1st July 1993 a Leave and Licence agreement was executed by and between the parties. It is stated that subsequently further agreements of Leave and Licence were executed by and between the parties. Under the agreement dated 1st June 1994 ,the monthly amount was increased to Rs.25,000/- per month and the security deposit was increased from Rs.3,00,000/- to Rs.5,00,000/-. It is contended that the electricity supply to the suit premises was got disconnected by the respondents. As the supply was in the name of the 1st respondent, without the consent of the 1st respondent, the electricity company declined to restore the supply. A prayer in the suit is for declaration of tenancy and for injunction. In the said suit, an application for temporary injunction was taken out by the petitioner. The first prayer in the said application was for directing the respondents to issue their no objection certificate for restoration of electricity supply. The second prayer was for injunction restraining the respondents from disconnecting the supply after the same was restored. The third prayer 3 was for injunction for protection of possession over suit premises. The last prayer was for appointment of Court Commissioner. 4. A written statement was filed by the respondents. The respondents denied that a tenancy was created in favour of the petitioner. It was contended that from time to time the respondents had given to the petitioner on Leave and Licence basis the premises admeasuring 3000 sq.ft. It is contended that there were ten Leave and Licence agreements executed from July 1993 up to July 2001 and the licence came to an end on 28th February 2005 by efflux of time. It was contended that by notice dated 23rd October 2007, the respondents called upon the petitioner to pay a sum of Rs.2,22,127/- being electricity charges and a sum of Rs.16,25,000/- being arrears of compensation up to 30th September 2007. A specific contention was raised that on expiry of period of the said notice, the petitioner abandoned the suit premises. It was contended that the premises were abandoned to avoid payment of dues. The application for temporary injunction was opposed by filing an affidavit in reply by raising similar contentions. 5. By judgment and order dated 26th/27th June 2008, the learned Judge of the Small Causes Court partly allowed the application by holding that the petitioner has not handed over possession of the suit premises by handing over keys to the respondent and that the possession has not been actually 4 transferred to the respondents. Therefore, a limited injunction was granted restraining the respondents from disturbing the possession of the petitioners and from preventing the workers of the petitioner from entering the suit premises till the hearing of the preliminary issue. The learned trial Judge observed that in view of sub-section 7 of section 29 of the Maharashtra Rent Control Act, 1999, a tenant can apply for supply of electricity to the competent authority without insisting on NOC being given by the landlord. 6. An appeal was preferred by the respondents. By the impugned order ,the appellate Court has interfered by setting aside the order of injunction. The appellate Court observed that the trial Court has protected the possession of the workers of the petitioners which relief was never sought. The appellate Court observed that the petitioner failed to prima facie prove the possession over the suit premises. 7. The learned counsel appearing for the petitioner invited my attention to notice dated 23rd October 2007 issued by the respondents to the petitioner. He pointed out that the said notice proceeds on the footing that the petitioner was in possession. A demand was made by the Respondents of electricity charges and arrears of compensation at the rate of Rs.25,000/- per month up to 28th February 2005 and at the rate of Rs.50,000/- from 1st March 2005 till 30th September 2007. He pointed out the reply dated 7th January 2008 issued by the petitioner to the said notice in which it was 5 asserted that the petitioner was in possession. He invited my attention to the stand taken in the written statement. He pointed out that the stand is that the petitioner-plaintiff has abandoned the suit premises and that as owners, the respondents were already having keys and the possession of the suit premises. He submitted that there is no evidence on record to show that the petitioner abandoned the suit premises and that the respondents were in possession. 8. The learned counsel appearing for the petitioner has tendered on record an affidavit of the constituted attorney of the petitioner in which it is stated that demand draft in the sum of Rs.16,00,000/- was ready which represented arrears of compensation at the rate of Rs.25,000/- per month. Further undertaking is recorded that as it is contended by the respondents that arrears are payable at the rate of Rs.50,000/- per month, the petitioner will deposit the balance amount payable by calculating the compensation at the rate of Rs.50,000/- within a period of nine months from that date. The learned counsel submitted that petition be allowed and the possession of the petitioner be protected. 9. The learned counsel appearing for the respondents supported the impugned order. He submitted that there is no prima facie material on record to show that the petitioner is entitled to claim tenancy in respect of the premises. He pointed out that from time to time Leave and Licence 6 agreements were executed in favour of the petitioner. He states that the last agreement is dated 1st July 2001 which provides for payment of compensation at the rate of Rs.50,000/- per month with effect from 1st July 2001. He submitted that there is prima facie evidence of abandonment of the suit premises by the petitioner. He pointed out specific averment in the written statement that though the date of the reply sent by the advocate for the plaintiff appears to be 7th January 2008, the date originally put on the said reply was 24th November 2007 which has been corrected to 7th January 2008. He submitted that the very fact that the petitioner did not pay the amount of arrears establishes the case made out by the respondents of abandonment. He invited my attention to the reply sent by the respondents. He pointed out no attempt was made by the petitioner to offer the arrears. He submitted that the conduct of the petitioner proves the case of the respondents that the petitioner had abandoned the premises. He submitted that legal possession always remained with the respondents being the licensors of the suit premises. 10. I have given careful consideration to the submissions. Even according to the case of the respondents, the petitioner was placed in possession of the suit premises as a licensee. In paragraph 3 of the written statement a specific case was made out that Leave and Licence agreements which are total ten in number were executed from July 1993 to July 2001. It is contended in the written statement that a sum of Rs.2,22,127/- being the 7 electricity charges was paid by the respondents to M/s.Reliance Energy for the month of September 2006 on behalf of the petitioner only to avoid disconnection of electricity supply. It was stated that from December 2004, the petitioner has not paid any amount. Therefore, by a notice dated 23rd October 2007 ,a demand was made for payment of arrears from 1st December 2004 to 28th February 2005 at the rate of Rs.25,000/-. It was contended that as the licence came to an end by efflux of time on 28th February 2005, from 1st March 2005, the petitioner was liable to deposit at double the rate of licence fee i.e Rs.50,000/- per month. The notice dated 23rd October 2007 issued by the respondents proceeds on the footing that the petitioner was in possession. It will be interesting to note as to what is the stand taken by the respondents in the written statement. In paragraph 3 of the written statement the respondents have stated thus: “.....The defendants, therefore, addressed a letter dated 23rd October 2007 to the plaintiff and demanded the sum of Rs.2,22,127/- being the electricity charges and the sum of Rs.16,25,000/- being the arrears of compensation for the period from 1st December 2004 to 30th September 2007. The defendants state that on expiry of the notice period the plaintiff abandoned the suit premises to avoid the payment of the defendants outstanding dues. The defendant state that as the owners, they were already having keys and possession of the suit premises. The defendants state that the plaintiff however, after abandonment, by his advocate’s letter dated 24/11/2007, addressed to the defendants’ advocate refused to comply with the defendants’ notice on false grounds. The defendants state that notwithstanding the said letter dated 24/11/2007 the plaintiff through his advocate changed the date of his earlier letter dated 24/11/2007 to 7/1/2008 and sent a copy thereof to the defendants’ advocate. The defendants have by their advocate’s letter dated 22/1/2008 replied to the plaintiff’s advocate said letters dated 24/11/2007 and 7/1/2008 and have denied the false contentions raised therein and have clarified that the plaintiff has abandoned two suit premises to avoid the payment of the 8 defendants’ outstanding dues and that the defendants as the owners premises. .....” 11. Thus, the case made out by the respondents is not that the possession was voluntarily handed over by the petitioner to them. Their case is of abandonment which is not supported by any document. The notice dated 23rd October 2007 indicates that industrial activity was being carried out such as alloy steel casting and fabrication in the suit premises and in fact the case of the respondents is that bill payable for electricity from September 2006 was to the tune of Rs.2,22,127/-. Thus, the petitioner was in possession of the suit premises which was being used as a factory premises and therefore, it is very difficult to accept the case that the petitioner would suddenly abandon the suit premises. It is not the case of the respondents that the petitioner had taken out their machinery and other articles from the suit premises. It is not the case of the respondents that the petitioner vacated suit premises. In fact in the plaint there is a specific averment that heavy machinery was installed in the suit premises and there was high tension electricity supply to the suit premises. The second part of the stand taken by the respondents is that they were having keys and the possession of the suit premise. On the face of it, said stand cannot be accepted in as much as even according to the case of the respondents, till 23rd October 2007 the petitioner was in possession. The notice alleges that the petitioner was carrying on business of alloy steel casting and fabrication in the suit premises. On the other hand, it is not the case of the respondents 9 that the suit premises was vacated by the petitioner. Therefore, the trial Court was justified in recording a prima facie finding that the petitioner continues to be in possession of the suit premises. As far as the appellate Court is concerned, there is no specific finding recorded that on a particular date, the petitioner handed over the possession to the respondents and that the respondents are in possession. The finding of the trial Court regarding possession has been set aside on the following ground: “.... Therefore, here we are of the considered view that learned trial Judge has erred in upholding plaintiff’s possession on the assumption and on the count that defendant had failed to prove the contrary i.e plaintiff has abandoned the suit premises. So also on more count learned trial Judge’s order is not sustainable, on the count that relief granted as regards to possession of workers is neither sought pleaded nor sought. It is not case of the plaintiff that workers possession be protected. Therefore, we are of the considered view that the plaintiff has failed to substantiate his prima facie possession over the suit premises on the date of the suit. Prima facie defendant has brought on record that he has paid electric charges and plaintiff is not doing business in the suit premises. Therefore, plaintiff is not entitled to the relief of injunction as prayed for. ......” 12. Taking the case made out in the written statement as it is, it is impossible to come to a conclusion that the petitioner was not in possession and that the respondents were placed in possession. 13. The order passed by the trial Court on application for temporary injunction records that the temporary injunction will continue till the preliminary issue of jurisdiction is heard. Thus, the order suggests that it is passed in exercise of powers under sub-section 2 of section 9A of the Code 10 of Civil Procedure, 1908. 14. The petitioner has kept ready a demand draft in the sum of Rs. 16,00,000/- drawn in favour of the Registrar of this Court which represents the arrears of compensation at the rate of Rs.25,000/- per month. There is some dispute as to whether the compensation was enhanced to Rs.50,000/- under a subsequent agreement. The notice dated 23rd October 2007 proceeds on the assumption that the agreed compensation was Rs.25,000/- and as the licence expired with effect from 28th February 2005, the petitioner was liable to pay at double the rate of the agreed compensation i.e Rs. 50,000/- per month from 1st March 2005. The petitioner has given an undertaking to deposit the arrears calculated at the rate of Rs.50,000/- per month within a period of nine months. 15. The respondents will have to be permitted to withdraw the sum of Rs. 16,00,000/- which may be deposited by the petitioner. Till the trial Court passes further order, the petitioner will have to keep on depositing compensation at the rate of Rs.50,000/- per month with the trial Court out of which it will be open for the respondents to withdraw a sum of Rs.25,000/- per month. The amount of Rs.16,00,000/- covers compensation payable up to end of March 2010. The petitioner will have to pay compensation from the month of April 2010 onwards. 11 16. The petitioner is in possession of the suit premises. According to the case of the respondents, the petitioner has not paid a sum of RS.2,22,127/- towards the arrears of electricity charges. The said amount will have to be deposited by the petitioner. The respondents will be entitled to withdraw the said amount subject to final outcome of the suit. On deposit of the said amount, the respondents will have to take steps for immediately restoring the electricity supply. If the respondents fail to do so, it will be open for the petitioner to apply to concerned authority to grant of electric supply. For such supply, if no objection of respondents is necessary, the respondents will grant no objection in writing without prejudice to their rights and contentions and subject to final outcome of the suit. 17. In the application for temporary injunction various prayers were made. The order of temporary injunction granted by the trial Court is not properly worded. Therefore, interim relief in terms of prayer clause (c) will have to be granted. 18. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and order passed by the Appellate Court is quashed and set aside. 12 (b) The undertaking of the petitioner marked as ‘X’ is accepted. The order dated 26th and 27th June 2008 passed by the trial Court below application at Exhibit 6 is modified and there will be an injunction in terms of prayer clause (c) of the said application at Exhibit 6 till the determination of preliminary issue of jurisdiction subject to the petitioner complying with following conditions: (i) A sum of Rs.16,00,000/- shall be deposited by the petitioner within a period of six weeks from today in this Court. On deposit of the said amount, the respondents will be entitled to withdraw the said amount subject to final outcome of the suit; (ii) The petitioner shall deposit compensation at the rate of Rs.50,000/- per month from April 2010 onwards with the trial Court. The compensation payable for April and May 2010 shall be deposited on or before 25th May 2010. The petitioner shall continue to deposit compensation at the rate of Rs.50,000/- per month with the trial Court with effect from June 2010 onwards on or before tenth day of every calendar month till further orders are passed by the trial Court . Out of the said amounts deposited by the petitioner, the respondents will 13 be entitled to withdraw a sum of Rs.25,000/- per month. Rest of the amount shall be invested by the trial Court in the fixed deposit with any nationalized bank; and (iii) The petitioner will comply with clause (3) of the undertaking dated 19th April 2010 filed in this Court by depositing the requisite amount in terms of the undertaking within a period of nine months from today. The said deposited amount shall be invested by the trial Court in the fixed deposit with any nationalized bank; (c) The petitioner shall deposit with the trial Court or with the 1st respondent a sum of Rs.2,22,127/- within a period of six weeks from today. On deposit of the said amount, the respondents shall forthwith take steps for restoration of electricity supply to the suit premises. If the respondents fail to obtain restoration of electricity supply within a period of three weeks from the deposit of the amount, it will be open for the petitioner to apply to the competent authority for grant of supply. If any no objection certificate is required for that purpose, the respondent shall issue the said certificate without prejudice to their rights and contentions. This arrangement will continue till the further orders are passed by the trial Court. 14 (d) All contentions of the parties on merits of the suit are expressly kept open. The deposit and withdrawal of amounts in terms of this order will be without prejudice to the rights and contentions of the parties in the suit. (e) The suit shall be finally decided without being influenced by tentative observations made by this Court in this order. (e) The writ petition is partly allowed in above terms. (f) No orders as to costs. . On the prayer made by the learned counsel appearing for the petitioner, operation of this order will remain stayed till 31st May 2010. (A.S.OKA,J)