1 1 wp 1741.10 plus 2.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srk WRIT PETITION NO.1741 OF 2010 M/s D. Dahyabhai & Co. Pvt. Ltd. ..Petitioner. v/s. Bhawani Cigarettes Pvt. Ltd. ..Respondent. WITH WRIT PETITION NO.1784 OF 2010 M/s D. Dahyabhai & Co. Pvt. Ltd. ..Petitioner. v/s. Vasai Tobacco Pvt. Ltd. ..Respondent. WITH WRIT PETITION NO.1786 OF 2010 M/s D. Dahyabhai & Co. Pvt. Ltd. ..Petitioner. v/s. Western Express Industries Ltd. ..Respondent. .... Mr. Piyush Shah for the Petitioner. Mr. Pravin G. Sawant for the Respondents. CORAM : J.H.BHATIA, J. DATE : 31ST AUGUST, 2010. P.C. 1 Rule. Rule made returnable forthwith. 2 Heard the learned counsel for parties. 2 1 wp 1741.10 plus 2.doc 3 Facts of all the three cases are similar. The Petitioner before this Court is original Plaintiff and the Respondents are original Defendants in Special Civil Suit Nos. 619 of 2007, 618 of 2007 and 651 of 2007 respectively. The Defendant in each suit had taken the properties situated at Sativali, Taluka Vasai, District Thane developed by CIDCO from the original owner/licensor M/s. Techno Prints (India) Ltd. under the leave and licence agreement dated 20th February 2004 in all the matters. Different licence fee was fixed for different properties in each matter. After the Defendant was inducted as a licencee by the previous owner, the Plaintiff purchased the said property from M/s Techno Prints (India) Ltd. in pursuance to the sale deed dated 12.08.2004. The earlier lease agreement between M/s Techno Prints (India) Ltd. and the Defendant came to be cancelled by deed of cancellation dated 23.08.2004 and the fresh Leave and Licence Agreement dated 23.08.2004 was executed between the Plaintiff and Defendant. The Defendant made the payments of the license fee till the end of March 2006. From 1st April, 2006 the Defendant did not make any payment towards license fee. Therefore the Plaintiff by issuing notice to the Defendant terminated the contract of leave and license and called upon the Defendant to hand over the 3 1 wp 1741.10 plus 2.doc vacant possession of the premises and to pay the arrears of licence fee. Due to failure of the Defendant to comply with the said notice, the Plaintiff filed the three suits referred above. 4 The Plaintiff filed an Application under Order 15-A of the Civil Procedure Code to direct the Defendant to deposit the arrears of the licence fee and to continue to pay the monthly license fee pending the suit and in case of failure to make the payment as per directions, the defence may be struck of. The Application was opposed by the Defendant on the ground that the Plaintiff had failed to produce the necessary approval to the construction and NOC from CIDCO, on the basis of which Defendant could secure electric supply. According to the Defendant because of the lapses on the part of the Plaintiff in performing the terms of the contract, the Defendant had suffered huge losses and therefore, it has made a counter-claim in each of the suit and in view of the counter-claim the Defendant could not be directed to make the payment pending the suit nor his defence could be struck of. This contention of the Defendant was accepted by the trial court and the Application under Order 15-A came to be rejected. That order is challenged in the present Petition. 4 1 wp 1741.10 plus 2.doc 5 Admittedly, the Defendant was inducted in the suit premises by the predecessor in title of the Plaintiff about six months before the Plaintiff purchased the property. The construction of the land was also made by the previous owner. The Defendant was put in possession of the land and structure thereon by the previous owner. In the written-statement-cum-counter-claim the Defendant had nowhere stated as to when the Defendant had approached the MSEB for the electric supply and what documents were required and which documents the Plaintiff was expected to produce but had failed to produce. Nowhere he pleaded specifically as to when he had approached the CIDCO and when CIDCO had informed that because certain conditions were not fulfilled by the Plaintiff, the approval to the construction or NOC could not be given by the CIDCO. Nowhere Defendant has pleaded as to when he had approached the Plaintiff to fulfill those conditions and that he was unable to carry on the business, due to not fulfillment of those requirements. 6 However, before this court, the learned counsel for the Defendant produced a letter dated 20th September, 2004 from MSEB Vasai office addressed to the 5 1 wp 1741.10 plus 2.doc Defendant. Alongwith that letter there was a sanction order dated 13th August, 2004 whereby MSEB had sanctioned additional electric load of 225 KW. In para 2 of the sanction order the Defendant was required to deposit certain amounts for electric supply. In para 5 he was required to produce certain clearances. Out of them clearances nos.1, 2, 4 and 5 were clearly expected to be secured by the Defendant. Item no.3 was NOC and approved plan from CIDCO. It appears that after this letter the Defendant approached the Plaintiff and accordingly the Plaintiff approached CIDCO. The Defendant addressed a letter dated 22nd March, 2005 to the Plaintiff with reference to the CIDCO’s approval and response to the Defendant’s letter dated 15.02.2005. It indicates that the Defendant had received a letter dated 11.02.2005 from CIDCO which indicated that the land in the licensed premises is in the industrial zone. In the letter dated 22nd March, 2005, the Defendant pointed out that the letter from CIDCO was not the approval for the building constructed on the land. The learned counsel for the defendant pointed out another letter dated 27.08.2008 from Gram Panchayat, Sativali to the Plaintiff, wherein it was pointed out that the Plaintiff had made various extended constructions in D Dayabhai & Company at 6 1 wp 1741.10 plus 2.doc House No.146. The Gram Panchayat called upon the Plaintiff to produce necessary permission in the Gram Panchayat Office, else action would be taken under section 52 and 53 of the Mumbai Gram Panchayat Act. Admittedly, after that letter no action was taken by Gram Panchayat at any time. The learned counsel for the Plaintiff contended that approval to the construction from CIDCO was not required because the construction on the land was made prior to the CIDCO came in picture in that area and as the permission was obtained from the Gram Panchayat. Therefore, question of obtaining any approval to the building from CIDCO was irrelevant and therefore CIDCO has only clarified by its letter dated 11.02.2005 that the land and the licensed premises are in the industrial zone and that was sufficient to obtain electric supply and to carry on the business in the said premises. 7 From 2004 when the Defendant was inducted till this day no order was passed by CIDCO against the Plaintiff or the Defendant in respect of any illegal construction. Even though the Gram Panchayat had issued the notice dated 27.08.2008, admittedly after that day no action was taken by the Gram Panchayat. According to the learned counsel for the Plaintiff, 7 1 wp 1741.10 plus 2.doc necessary documents were produced before the Gram Panchayat and therefore, no further action was taken by them. There is nothing to show that even after the receipt of letter dated 11.02.2005 from CIDCO the Defendant could not get electric supply from MSEB because of non production of certain documents by the Plaintiff. The requirement of MSEB about NOC from CIDCO appears to have been fulfilled by the letter dated 11.02.2005 from CIDCO that the land and the premises are situated in the Industrial zone. In view of this material, prima facie no case is made out for any counter-claim. Atleast, in the written-statement-cum-counter-claim no details of the counter claim are given nor any facts and circumstances are disclosed on the basis of which Defendant could make such counter-claim against the licensor/landlord. Prima facie, it appears that the counter-claim was just an eyewash to avoid the payment of the licence fee. These circumstances were not taken into consideration by the trial court while rejecting the prayer of the Plaintiff under Order 15-A of the Civil Procedure Code. 8 Before concluding it may be noted that after the lengthy arguments before this court, the learned counsel for the 8 1 wp 1741.10 plus 2.doc Defendant offerred to hand over the vacant possession but he expressed inability to make payment of arrears or even a part of the same or even to furnish bank guarantee for whole or a part of the arrears on the ground that the Defendant company has been practically closed as it was running in losses and at present it has no money. It shows that the Defendant is unable to make the payment and if it is so even if the decree is passed in future for payment of the arrears of licence fees, it may be difficult to execute the decree. Therefore, it is necessary to direct the Defendant to deposit the arrears of the licence fees and in case of his failure to make the payment, the defence may be struck of. 9 For the aforesaid reasons, the impugned order in all the three suits is hereby set aside. The Defendant is directed to deposit the arrears of the licence fees from 1st April, 2006 to 31st August, 2010 within two months from this day and to pay the licence fees thereafter regularly every month, failing which the defence of the Defendant shall stand struck off under Order 15-A of the Civil Procedure Code. 10 Rule made absolute accordingly. [ J.H.BHATIA, J. ]