1 renewed-nms-311-06.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.311 OF 2006 IN SUIT NO.218 OF 2006. Sukanya Maheshchandra Lad & Anr. ..Plaintiffs. v/s. Satish V. Bhatt & Ors. ..Defendants. .... Mr. Bharat Joshi, for Plaintiffs. Mr. R. Jaisinghani, i/b. B.V. Mahadik, for Defendant No.1. .... CORAM : S. J. KATHAWALLA, J. RESERVED ON : 8TH JUNE 2011. PRONOUNCED ON : 2ND AUGUST 2011. P.C. 1. By the above Suit, the Plaintiffs have inter alia sought a decree for possession against the Defendants in respect of Premises No.16 admeasuring 1,860 sq. feet (carpet) situated on the 1st floor of Bharati Bhavan, 211/219 P. D’Mello Road, Fort, Mumbai 400 001 (the suit premises), with directions to the Defendants to hand over vacant and peaceful possession of the suit premises to the Plaintiffs. The Plaintiffs have also sought a decree against the Defendants for a sum of Rs. 2 renewed-nms-311-06.doc 17,50,000/- along with interest @12% per annum from 17th October 2005 till realization of the full decretal sum, as damages. The Plaintiffs have further sought a declaration that the Defendants are liable to submit the accounts of repairs, expenses, receipts to the Plaintiffs for repairs of suit premises and for appointment of a Commissioner of Accounts to examine verify and check the accounts of the Defendants, for repairs to Bharti Bhawan (the said building). 2. The Plaintiffs have also taken out the above Notice of Motion seeking appointment of the Court Receiver in respect of the suit premises with directions to appoint the Plaintiffs as his agents and allow the Plaintiffs to occupy the Suit premises without security and without royalty. 3. The Plaintiff No.1 is the mother of Plaintiff No.2. The Plaintiffs are carrying on business in the name and style of Lad & Co. under a Partnership Deed dated 1st April 2001. Prior thereto Plaintiff No.1 and one Premlata Lad had entered into a partnership business under a Partnership Deed dated 30th September 1971 in the name and style of ‘M/s. Lad & Company’. As per the said Partnership Deed the partnership business commenced from 25th November 1971. By a Deed 3 renewed-nms-311-06.doc of Dissolution dated 16th August 1994 Premlata Lad retired from the said Partnership. According to the Plaintiff No.1, subsequent to the retirement of Premlata Lad from the partnership the husband of the Plaintiff was taken as a partner of the Plaintiff No.1. However, at present she is unable to trace the Partnership Deed with her husband. The husband of the Plaintiff died in 2001 and thereafter a Partnership Deed dated 1st April 2001 was executed and her daughter Rupal i.e. Plaintiff No.2 was introduced as a partner in M/s. Lad & Co. 4. The Defendant No.1 is one of the tenants in the said building in which the suit premises are situated. Defendant No.3 is Bharati Bhavan Tenants Welfare Association which is registered under the provisions of Section 25 of the Companies Act 1956. The Defendant No.1 is the Director of the said Association. One Bharati Newspapers Pvt. Ltd. are the owners and the landlords of the said building. According to the Plaintiff the Defendant No.2 is also an office bearer/director of Defendant No.3 and the said Defendant No.2 is also one of the Directors of Bharati Newspapers Pvt. Ltd. and therefore one of the landlords of the said building. In fact according to the Plaintiffs the Defendant No.2 has, posing as a Director of the landlord Bharati Newspapers Pvt. Ltd. signed 4 renewed-nms-311-06.doc the Vakalatnama in R.A.E. Suit No. 423/704/2000 filed on 30th March 2000 by the Landlord in the Small Causes Court, Mumbai, against the firm Lad & Co. on the ground of alleged non user of the suit premises and also on the ground that the premises are being kept locked for more than 6 months. It will not be out of place to mention here that the said Bharati Newspapers Pvt. Ltd. as the landlord of the said building, had in the present Suit filed a Chamber Summons being No.591 of 2006 for being impleaded as Party Defendant to the above Suit. However, the said Chamber Summons was dismissed by an Order of this Court dated 15th November 2010 (Coram : R. Y. Ganoo, J.) from which no appeal was preferred by the Landlords Bharati Newspapers Pvt. Ltd. The present Advocates have filed their appearance only for Defendant Nos. 1 and 3, and not for Defendant No.2 (one of the landlords of the said building) depsite him being joined as party Defendant to the Suit in his capacity as an Office bearer/ Director of Defendant No.3; with the result that Defendant No.2 has neither come forward with his say in the above Notice of Motion nor has he filed the appearance of any Advocate for being represented in the above Suit. According to the Plaintiffs, this is so because Defendant No.2 is also one of the Directors of the landlord 5 renewed-nms-311-06.doc Bharati Newspapers Pvt. Ltd., and in view of the facts narrated hereinafter Defendant No.2 has already admitted in the Suit filed against M/s. Lad & Co. in the year 2000, that the said Lad & Co. is the tenant of the Suit premises; will now not be able to support the incorrect and untenable stand taken by the Defendant Nos. 1 and 3 in the present Notice of Motion. 5. The Controller of Accommodation by his letter dated 19th November 1971 addressed to one Virendra Kumar Jhamb ( an old tenant of the Suit premises), after referring to Shri Jamb’s letter dated 18th November 1971 intimating that he intends to transfer the Suit premises to M/s. Lad & Co., informed Shri Jhamb that the Government is not interested in the Suit premises and does not propose to avail of the said vacancy. By a letter dated 25th November 1971, Bharati Newspapers (Pvt.) Ltd. (landlord of the said building) in response to the request made by M/s. Lad & Co., informed M/s. Lad & Co. that the landlord has no objection to M/s. Lad & Co. giving a license to any person for user of a portion of the Suit premises, subject to obtaining their prior formal approval in writing. The landlord Bharati Newspapers Pvt. Ltd. by a letter dated 6th December 1971 addressed to M/s. Lad & Co. inter 6 renewed-nms-311-06.doc alia recorded that M/s. Lad & Co. has rented out the Suit premises as an office as per the Deed of Partnership dated 30th November 1971, a copy of which was also furnished to the Landlords by the said M/s. Lad & Co. In the said letter it is further recorded by the Landlord that M/s. Lad & Co. had sought permission of the landlords to allow M/s. Gujarat Nett Ltd Bombay, to occupy a portion of the Suit premises on leave and license basis, pursuant to which permission was granted by the landlord to M/s. Lad & Co. to give on leave and license basis a demarcated portion of the Suit premises of Lad & Co. for a period of 5 years subject to the terms and conditions mentioned therein. One of the conditions mentioned was that on termination of the period of license the permission granted to M/s. Lad & Co. shall stand revoked and consequently the license of the licensee M/s. Gujarat Nett Ltd. shall also stand revoked. The Plaintiffs have produced a Photostat copy of the said Partnership Deed dated 30th November 1971 which shows the Plaintiff No.1 and one Premlata Dineshchandra Lad as partners of the said partnership, viz. M/s. Lad & Co. The Plaintiffs have also produced a Deed of Dissolution dated 16th August 1994 between the Plaintiff No1. and Premlata Dineshchandra Lad wherein it is shown that the 7 renewed-nms-311-06.doc partnership between the said two partners stood dissolved and the Plaintiff No.1 had become the Proprietor of M/s. Lad & Co. from 16th August 1994. 6. As pointed out by the Plaintiffs in the Plaint, on 31st August 1990 the Landlord, M/s. Bharati Newspapers Pvt. Ltd. filed a suit being No. 1250/3680/1990 against M/s. Lad & Co. (Defendant No. 1 therein) as well as Gujarat Nettworks (Calico) (Defendant No. 2 therein) seeking eviction of the Defendants on the ground of reasonable and bonafide requirement of the Plaintiffs under Section 13 (i)(g) of the Bombay Rent Act, 1947 (the said Act). The Learned Advocate for the Plaintiffs have taken me through the said Plaint. In Paragraph 3 of the said Plaint the landlord has admitted that the Suit Premises are tenanted to the Defendant No.1 i.e. M/s. Lad & Co. In Paragraph No.14 of the Plaint it is averred by the Landlord that the Defendant No.2 i.e. Gujarat Networks Ltd. (Calico) was not in exclusive possession of the suit premises on 1st February 1973 either as a licensee of M/s. Lad & Co. or as sub-tenant of M/s. Lad & Co. and therefore the Defendant No.2 is not protected under the provisions of the said Act and is not entitled to succeed to the tenancy rights of M/s. Lad & Co. under Section 14 of the said Act. On 8 renewed-nms-311-06.doc 13th September 1990 the Landlord Bharati Newspapers Pvt. Ltd. filed one more suit being R.A.E. Suit No. 1016/2935 of 1990 against M/s. Lad & Co. (Defendant No. 1 therein) and against M/s. Gujarat Nettworks (Calico) (Defendant No.2 therein) seeking eviction of the Defendants on the ground that M/s. Lad & Co. has not used the suit premises for more than 6 months without sufficient and reasonable cause and has without the permission of the landlord unlawfully assigned, sub-let, transferred, given on leave and license to Gujarat Nettworks (Calico), Defendant No. 2 therein. 7. In the above suits it is the Plaintiff No.1 herein, Smt. Sukanya Maheshchandra Lad, who had filed the Written Statements on behalf of Lad & Company. However, the Advocate for the Plaintiffs has informed the Court that both the suits have been dismissed by the Small Causes Court, Mumbai for want of prosecution. 8. Admittedly, in the year 1990 the said building wherein the suit premises is situated was in dilapidated condition and needed urgent repair works. The occupants and tenants of the building formed an Association known as Bharati Bhavan Tenants Welfare Association (Defendant No.3 herein). On 25th May 1993 the members of the 9 renewed-nms-311-06.doc Association met the Directors of the Landlord of the said building i.e. M/s. Bharati Newspapers Pvt. Ltd. and discussed the matter of urgent repairs to the said building. Thereafter on 29th May 1993, Architect Shri Chudawala was appointed by the Defendant No.3 Association to prepare an estimated cost for the repairs of the said building. Shri Chudawala inspected the said building on 4th June 1993 and submitted an estimate on 21st June 1993 which was circulated by the Association amongst the tenants/ occupants of the Suit building. 9. On 5th July 1993 the Defendant No.3 Association addressed a letter to the tenants/occupants/members of the said building as regards urgent repairs required to the said building. A list of tenants was annexed to the said letter of the Association. In the said list the Defendant No.3 Association itself has shown the name of Lad & Company as Tenant though the letter is accepted by one of the staff members of Gujarat Nett on 8th July 1993. Similarly the other letters / circulars dated 17th July 1993, 26th July 1993 and 30th December 1993 issued by the Defendant No.3 Association shows the names of Lad & Co./Gujarat Nett as Tenants/Occupiers of the suit premises. The said letters/circulars are signed by none other than the Defendant No.1 who has in his Affidavit 10 renewed-nms-311-06.doc in Reply stated that the Plaintiffs are mere “strangers” qua the suit premises. 10. According to the Defendant Nos. 1 and 3, the Defendant No.3 Association by an Agreement dated 21st December 1993 entered into an agreement with Ahmedabad Manufacturing & Calico Ptg. Co. Ltd. (Calico) and its subsidiary i.e. the Gujarat Nett. Interestingly the Parties of the First Part in the said Agreement are the Defendant No.1 i.e. the Secretary of the Defendant No.3 Association and the Director of the Landlord Shri Dwarkanath Mishra. Again interestingly, the very same landlord had filed the above two suits in the Small Causes Court inter alia alleging that M/s. Lad & Co. are the tenants of the suit premises and M/s. Gujarat Nett are in unlawful occupation of the suit premises. To put it differently the said Agreement was entered into by the Landlord of the said Building as well as the Defendant No.3 Association with the occupier of the Suit premises, who according to the landlord was in unlawful occupation of the same. However, it is noted in Paragraph 2 of the said Agreement that the said Ahmedabad Manufacturing and Calico Ptg. Co. Ltd. (Calico)/Gujarat Nett was shown as the occupant of the suit premises and not the tenant. Under the said agreement the said 11 renewed-nms-311-06.doc Ahmedabad Manufacturing and Calico Ptg. Co. Ltd. (Calico)/Gujarat Nett agreed to hand over the suit premises to the Party of the First Part i.e. the Defendant No.3 Association and the Landlord of the said building, within 7 days from the date of request made in that behalf by the Party of the First Part and the Party of the First Part agreed to give back the possession of the suit premises to the Party of the Second Part i.e. Ahmedabad Manufacturing and Calico Ptg. Co. Ltd. (Calico)/Gujarat Nett within 7 days from the date of completion of repairs to the suit building and the suit premises being certified as habitable by the BMC and the Architects and Structural Engineers. Under Clause 2 of the said Agreement it was agreed that the Party of the Second Part will pay approximately Rs. 300/- per sq. ft. aggregating an amount of Rs. 7,44,900/-, with provision for appropriate adjustments at the time of final accounts. It is also provided in the Agreement that in the event of the Party of the Second Part not paying its dues on or before the dates set out in the Agreement, interest @18% per annum will be charged on the overdue amount till date of such payments. Admittedly an amount of Rs.1,00,000/- is received by the Party of the First Part i.e. the Defendant No.3 Association and the Landlord under the said agreement from the 12 renewed-nms-311-06.doc Party of the Second Part leaving a balance of Rs.6,44,900/- subject to final accounts being drawn up. 11. According to the Plaintiffs, the purported Agreement dated 21st December 1993 was entered into by the Defendant No.3 Association and the landlord of the said building with Ahmedabad Manufacturing and Calico Ptg. Co. Ltd. (Calico)/Gujarat Nett without the knowledge of the Plaintiffs. It is submitted by the Plaintiffs that in any event when the said building was being repaired Gujarat Nett Limited, a subsidiary of the Ahmedabad Manufacturing and Calico Printing Co. Ltd. (Calico), vacated the suit premises on 9th March 1994 and surrendered a portion of the suit premises to M/s. Lad & Co. The said Ahmedabad Manufacturing and Calico Printing Co. Ltd. (Calico) by its letter dated 31st March 1994 written by Shri J. V. Page, Regional Executive addressed to M/s. Lad & Co. has confirmed having vacated the suit premises and handing over the peaceful and vacant possession of the suit premises to M/s. Lad & Co. on 9th March 1994. By his notice/letter dated 17th October 2005, addressed to Defendant Nos. 1, 2 and 3 the Advocate for the Plaintiffs inter alia recorded in Paragraph 10 of his letter as under : “10. My clients states that by their letter dated 31.3.1994, the licensee – Gujarat Nett Limited, through its principal 13 renewed-nms-311-06.doc company, Ahmedabad Manufacturing and Calico Printing Company Limited surrendered their licence to my clients as Licensor. My client state that the said licensee also addressed a letter dated 9.3.1994 to you addressee No.1. My client as tenant of premises No.16, is entitled to receive back the vacant possession of the repaired premises”. Thus, though by the said notice, Defendant No. 1 i.e. the Director of the Defendant No.3 Association was made aware of the fact that Ahmedabad Manufacturing and Calico Printing Company Limited(Calico)/Gujarat Nett have surrendered their license to M/s. Lad & Co. since 9th March 1994, the Defendant No.1 and/or the Defendant No.3 have at no stage denied or disputed the said fact and have also not dealt with the same in their Affidavit in Reply dated 18th December, 2010. In fact from one more suit filed by the Landlord against M/s. Lad & Company on 30th March 2000 before the Small Causes Court Mumbai being R.&P. R.A.E. Suit 423/704/2000 seeking a decree of possession against Lad & Company to quit, vacate and hand over peaceful possession of the suit premises, it is clear that the Landlord is aware of the fact that Ahmedabad Manufacturing and Calico Printing Company Limited (Calico)/Gujarat Nett are no longer in occupation of the suit premises. This is so because as set out hereinabove in the earlier Suits 14 renewed-nms-311-06.doc being Suit No.1250/3680/1990 and Suit No.1016/2935/1990 filed by the Landlord it was stated that M/s. Lad & Company is the tenant of the suit premises and M/s. Gujarat Nett is in unlawful occupation of the suit premises and that the Landlords are entitled to recover possession of the suit premises from M/s. Lad & Co. as well as Gujarat Nett. Whereas in the 3rd Suit filed by the Landlord in the year 2000 M/s. Gujarat Nett is not joined as a Party Defendant and it is only stated in paragraph 3 of the Plaint that M/s. Lad & Co. is the tenant of the suit premises and has kept the said premises locked without any reason or justification since the last 10 years and the landlord is entitled to evict M/s. Lad & Co. from the suit premises u/s.13(1)(k) of the said Act. M/s. Lad & Co. has through the Plaintiff No.1 also filed several Applications before the Small Causes Court, Mumbai, to be allowed to deposit the rent of the Suit premises in Court, which Applications were allowed. 12. The Plaintiffs have also pointed out to this Court that the Plaintiff No.1 by her letter dated 10th October 1995 addressed to the defendant No.1 as the Secretary of Defendant No.3, without prejudice to her defense in the aforestated three suits filed by the landlord before the Small Causes Court Mumbai, had offered to pay her contribution 15 renewed-nms-311-06.doc towards repairs carried out to the said building. In the said letter she has further recorded that after the repair work is over the Defendants have put up third parties in possession of the suit premises without her knowledge and consent and had called upon the Defendants to hand over possession of the suit premises along with Premises No.16A of which M/s. Lad & Co. is admittedly a tenant, upon payment of Rs.9 lakhs towards costs of repairs. Though the said letter was received by the Defendant No.3 on 8th November 1995, Defendant No.3 has not responded to the same. Plaintiff No.1 once again by her letter dated 13th February 1996 addressed to the Defendant No.1 inter alia recorded that the Defendant No.3 Association has temporarily shifted some of the tenants in Room No.16 without obtaining the permission of M/s. Lad & Co. She has also requested the Defendants to allot atleast one cabin for the use of M/s. Lad & Co. till the repair works of the other wing is completed and the Defendants vacating the suit premises. She has also recorded that the dues of the Association can be settled by taking mutually acceptable decisions. Though the said letter is received by the Defendant No.3 on 23rd February 1996, the Defendant No.3 has not responded to the same. M/s. Lad & Co. therefore by its Advocates 16 renewed-nms-311-06.doc Notice dated 17th October 2005 addressed to the Defendants, set out some of the above facts and called upon the Defendants to hand over the possession of the suit premises to M/s. Lad & Co. and also asked for the final accounts pertaining to the repairs carried out in the said building. The Advocates for M/s. Lad & Co. also called upon the Defendants to pay to the Plaintiffs a sum of Rs.17,50,000/- being the loss and damage caused to her in view of the conduct of the Defendants in not handing over the suit premises to M/s. Lad & Co. The Defendants have not responded to the said Notice dated 17th October 2005. In view thereof the Plaintiffs have filed the present Suit on 22nd December 2005 and have carried out amendments thereto on 27th February 2006. In the above Notice of Motion the Plaintiffs moved for ad interim reliefs before this Court. By an Order dated 14th February 2006 this Court directed the Plaintiffs to deposit Rs.10 lakhs and further directed that on such deposit being made, the Court Receiver High Court, Bombay shall stand appointed as Receiver in respect of the Suit Premises. This Court further directed the Court Receiver to take possession and seal the Suit premises and to submit his report to this court for appointment of agent in respect of the Suit premises. The Defendant No.3 filed an Appeal therefrom 17 renewed-nms-311-06.doc which was disposed of by an Order dated 22nd March 2006. Paragraphs 2, 4 5 and 6 of the Order passed by the Appeal Court are reproduced hereunder :- “2. The Appellant herein which is a tenants association has only a claim of Rs.9 lakhs and odd towards the repairs charges alongwith the interest and this is purely a money claim and they have no right over the suit property. 4. Having regard to the aforesaid facts and circumstances, as none of the rights of the Appellant (Tenant Association) are affected and they have only a monetary claim from the original plaintiff, we are not inclined to interfere with the impugned order passed by the learned Single Judge, which is only a protective order. 5. However, so far as the part of the order of the learned Single Judge with regard to the appointment of an agent is concerned, the said part of the order with regards to the appointment of agent, is stayed only for a period of six weeks from today, so as to enable the parties to get appointed as an agents and as also to get aforesaid order vacated. 6. We make it clear that we are not disturbing the other part of the order of the learned Single Judge, accept the aforesaid stay for a period of six weeks only with regard to the appointment of an agent of the Court Receiver.” 13. The Learned Advocate appearing for the Plaintiffs has submitted that from the aforesaid facts it is established that M/s. Lad & Co. is a tenant in respect of the suit premises. The Plaintiff No.1 along with Smt. 18 renewed-nms-311-06.doc Premlata Lad were partners of the said M/s. Lad & Co., since 1971 to 1994. Thereafter, certain changes did take place in the constitution of the firm - M/s. Lad & Co. However, M/s. Lad & Co. have throughout continued to be the tenants of the suit premises. M/s. Gujarat Nett were only the licensees of M/s. Lad & Co. and by their letter dated 31st March 1994, they have confirmed having surrendered the suit premises to M/s. Lad & Co. The landlord of the said building and also of the suit premises had in the two suits filed before the Small Causes Court at Mumbai in the year 1990 admitted that M/s. Lad & Co. is the tenant of the suit premises and had further stated that M/s. Gujarat Nett are in unlawful occupation of the suit premises. Moreover, since the landlord was aware that M/s. Gujarat Nett had surrendered the suit premises to M/s. Lad & Co. and had vacated the suit