1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3147 OF 2009 IN SUIT NO. 2203OF 2009 Obron Industrial Finance Ltd. ... Plaintiff. V/s. Jugalkishore Mehra & Anr. ... Defendants. Mr. Prashant Prabhu for the Plaintiff. Mr. Vaibhav Mehta a/w. S. Mishra, Ms. Deepti Mistry i/b. Vaibhav Mehta & Assoc. for Defendants 1 and 2. CORAM : S.C. DHARMADHIKARI,J. DATED : 6th NOVEMBER 2009. P.C. :- Heard learned Counsel appearing for parties. 2. Perused the plaint and the annexures thereto. The claim in the Suit is that the Memorandum of Understanding dated 6th May 2006 (Annexure ‘F’) is valid and binding upon the Defendants and that they should specifically perform the same. 3. The claim is on the basis that the Plaintiff was earlier known as “Ajay Glassware Pvt. Ltd. That Company has merged with M/s. Usha Processors Ltd. Thereafter, the name of the Company is the present one. It is stated that Ajay Glassware Pvt. Ltd. was carrying on business from the portion 2 of the Suit property viz. the shed admeasuring 8500 sq.ft. Since, the earlier entity was a Pvt. Ltd. Co. and managed by a family member, the Defendants approached the Plaintiffs whereafter, the subject MOU was executed. The subject MOU admits the tenancy rights according to the Plaintiffs of this area since 1961. As per the MOU, the Plaintiffs handed over vacant possession of this property/shed for re-development. However, after re-development, the MOU has not been performed inasmuch as the Plaintiff has not been put in possession and that is how the Suit claim has been raised. 4. That is resisted by Defendant Nos.1 and 2 by filing reply affidavits. In the reply affidavit, there is a stand taken that there was no tenancy. Upon partition of the larger properties, various family members were carrying on business in small portion thereof. Hence, the basis that the Plaintiff is a tenant is false. In any event, if such is the nature of the claim, then, this Court has no jurisdiction to entertain and try this Suit. 5. After having heard parties at some length, I was informed that the Defendants have inducted licensees in the subject premises (8500 sq.ft.) earlier occupied by the Plaintiff. In the newly constructed premises, the portion claimed is a ground floor and admeasuring 6,500 sq.ft. It is stated that a leave and licence agreement has been executed in favour of one Au Finja Jewels. They are licensees and presently occupying 11,500 sq.ft. Carpet area. However, if at all, the MOU is held to be valid, the claim of the Plaintiff is only 3 towards 6,500 sq.ft. and in this entire portion, the licencee is in occupation. 6. After further arguments, both sides agreed that without prejudice to their rights and contentions, the Motion can be disposed off by the following order :- (i) That pending the hearing and final disposal of the Suit, the Defendants, their servants, agents and persons claiming through them shall not alienate, encumber or transfer the area of 6500 sq.ft on ground floor of the building, J.K. Textiles, building No.2, Mehta Estate, LBS Marg, Vikhroli, (West), Mumbai – 79. However, this order does not prevent the Defendants from giving the premises on leave and licence basis and/or continuing the existing leave and licence arrangements. The prohibition is against transfer and sale of the premises in any manner and therefore, the licensees can continue to occupy the premises. The Motion is made absolute in these terms. However, it is clarified that the issue of jurisdiction and maintainability of the Suit is kept open and can be raised when the Suit is being tried. All contentions of both sides in that behalf are kept open. (S.C. DHARMADHIKARI,J.)