1 In the High Court of Judicature at Bombay. Ordinary Original Civil Jurisdiction. NOTICE OF MOTION NO. 2439 OF 2009 IN SUIT NO. 1697 OF 2009. Bata India Ltd. ..Plaintiff. v/s. Mr. R. M. Dongre & Ors. ..Deft. Mr. P. K. Dhakephalkar sr counsel a/w Aditya Khandeparkar i/b Khaitan & Jaykar for the plaintiff. Mr. Girish Godbole a/w Manjiri Parsnis for deft. no.1. Mr. Rajesh Kachare for deft. no.5. CORAM : S.C.DHARMADHIKARNI, J. DATE : 30th November 2009. P. C. : 1. In a suit under section 6 of the Specific relief Act, the plaintiffs are seeking interim relief. The averment in the plaint is that this suit under section 6 of the Specific Relief Act is simplicitor for restoration of possession. 2. Mr. Dhalkephalkar, learned senior counsel appearing on behalf of the plaintiff submits that the plaintiff is a renowned shoe manufacturing company. It has various show-rooms across the country. Its goods and more particularly footwear is popular and therefore the plaintiffs were desirous of setting up of a show-room for sale of their products in the vicinity and locality where the deft. no.1 is carrying on business. The first defendant is licensor of the premises more particularly described as Unit-2, Shivai Industrial Estate, 89, Kurla-Andheri road, Sakinaka, Andheri (east), Mumbai – 400 072. 2 3. The defendant nos. 2 & 3 along with deft. no.1 are heirs of one Surekha Dongare (since deceased). Unit nos. 2 and 3 together constitute the suit premises. Fourth defendant is a partnership company carrying on its business from the address mentioned in the cause title and the fifth defendant is a club, association carrying on its activities of promoting the game of chess. It is the case of the plaintiff that they were desirous of acquiring premises on leave and licence basis for establishing a retail show-room and hence approached the first defendant. After negotiations the plaintiff received a letter dated 6th March 2003 from the first defendant wherein he states that a proposal to have a Joint Retail venture in the suit premises is acceptable provided the plaintiff complies with the terms stipulated in this letter. 4. Thereafter the plaintiffs confirmed their acceptance by letter dated 14th April 2003. Mr. Dhakephalkar laid special emphasis on clauses 2 to 5, 8 and 10 of this letter whereas clause 18 is relied upon by the defendants. 5. Mr. Dhakephalkar submits that it is undisputed that there was correspondence and thereafter the plaintiff was requested by the defendant nos. 1 and 2 to take possession of the premised forthwith. Mr. Dhakephalkar submits that the joint revenue venture is just a term arrived at to label the arrangement but in effect that was a leave and licence agreement. He submits that once the plaintiffs are informed that they can establish the retain show room from the suit premises, then, handing over of the keys of the locks of the premises and the plaintiff confirming having received the vacant possession are all ingredient for 3 establishing the settled possession of the plaintiff. Once the possession is settled and that fact is also confirmed by the averments in the plaint, then, the act of the defendants in forcibly entering into the premises and putting their own lock on 21st february 2009 is a blatant act of dispossession without the consent of the plaintiffs and by force. The suit is filed within the period stipulated by t he law and hence all ingredients of section 6 of the Specific Relief Act are satisfied. 6. Mr. Dhakephalkar has laid special emphasis on the fact there was a dispute on account of the commission payable and the defendants were desirous of increasing the same and since the plaintiff immediately did not agree to it, the high handed act has taken place. This fact is confirmed from the letters dated 26th August 2006 and 18th May 2007 and further letters dated 1st December 2007 and 19th March 2009. 7. Mr. Dhakephalkar submits that this is a clear case where the plaintiffs are in the settled possession and have been dispossessed forcibly and therefore this Court should appoint the Court Receiver, High Court Bombay as a receiver of the premises and confer upon him full powers including to hand over the suit premises on such terms and conditions to the plaintiff. The Receiver can determine after execution of necessary agreement. 8. On the other hand Mr. Godbole, learned counsel for the deft. no.1 submits that the plaint proceeds on the basis that there was a leave and licence agreement. This is not a case of the plaintiff being put in possession as contended. On the other hand this is a case where the parties executed a joint 4 venture agreement. The parties were to carry on business jointly as is apparent from the clauses of the agreement. This is not a case where the plaintiff was being put in exclusive possession as licensee. In any event if such is the case and a different nomenclature is sought to be given to the arrangement between the parties then the remedy of the plaintiff is to institute a suit in the Small Causes court and therefore this Court has no jurisdiction to entertain and try the present suit. 9. In any event, Mr. Godbole submits that the plaintiff has suppressed a relevant and material fact. The plaintiff beyond stating that they have allowed M/s. Anil Rane and Company to conduct their business from the suit premises not stated anything about the arrangement. This is done deliberately. Inviting my attention to paragraph 22 of the plaint, Mr. Godbole submits that on the own showing of the plaintiff, the possession ofthe premises has been parted with by them in favour of M/s. Anil Rane and co. Laying special emphasis onthe words irrespective of the conducting agreement, the exclusive possession remains with the plaintiffs, Shri. Godbole submits that since this agreement is not disclosed, the very foundation of the plaintiffs being in settled possession is wiped out. He submits that this agreement between M/s Anil Rane and the plaintiff is annexed as Exhibit-M to the affidavit in reply. Mr. Godbole submits that clause 2 of the same coupled with the rights and obligations of the licensor and licensee would make it clear that the plaintiffs are not in exclusive and settled possession. Therefore, assuming that they were put in possession by the defendants as urged, yet, when they were not dispossessed forcibly from the suit premises, then, a suit under section 6 of the specific relief Act is not maintainable. 5 10. I have perused the plaint and the annexures thereto so also the affidavits placed on record together with their annexures. There is much substance in the contentions of Mr. Godbole that the plaintiff has not approached the court with clean hands. Section 6 of the Specific Relief Act 1963 is very clear. A suit under sec. 6 for recovery of possession lies at the instance of the person who is dispossessed, without his consent from an immovable property otherwise than in due course of law, such person notwithstanding any other right that he would be able to set up, can file a suit to recover possession. The suit has to be brought before the expiry of period set out in section 6(2)(a) of the said Act. It is well settled that the scope of enquiry under section 6 is extremely limited. Further, the vital ingredients are that the person must be in possession, that he must have been dispossessed by the defendant, that the dispossession is without his consent and not in accordance with law and that it took place within 6 months of suit. If paragraph 22 of the plaint is perused, it is apparent that the plaintiffs are not disclosing the correct facts in relation to the arrangements between themselves and M/s. Anil Rane and Co., They have entered into conducting agreement as is apparent from the contents of this paragraph. However, irrespective of the conducting agreement the exclusive possession and the control of the suit premises remains with the plaintiff is the further averment. If the true nature of this arrangement had been disclosed it would be clear that the plaintiff had parted with the possession in favour of Anil Rane and Co. at least from the date of execution of the conducting agreement. Though a copy of the said agreement has been produced but the only answer that the plaintiffs have given is that they 6 continue to retain control of the premises. This is eloquent enough. It demonstrates that the very essential ingredient of the plaintiff being in possession of the property from which it is dispossessed without the consent and by not in accordance with law has not been satisfied in the facts of this case. If it is not so satisfied, prima facie, then it must be held that the plaintiffs are not entitled to any interim relief. 11. Once this view is taken, it is not necessary to consider the aspect as to whether despite the averments in the plaint and the clauses of the conducting agreement the fact, of the defendant seeking possession from the plaintiff means the plaintiff was always in settled possession need not be considered. Once the stand of plaintiff deviates to this extent, it is clear that their being insettled possession is doubtful. Else, they would have not made a vague assertion. It may be true that the defendants conduct, prima facie, was not justified but as the plaintiff comes to court u/s 6 with such a case, it is his duty to set out complete and true facts. If the plaintiff is keeping back from the court vital documents and relevant facts, then, I am of the opinion that such party cannot get any assistance in discretionary and equitable jurisdiction. As a result of the above discussion, the notice of motion fails and it is accordingly dismissed. There will be no order as to costs. 12. At this stage, it is prayed that the plaintiff’s stock is lying in the suit premises and the same is taken away by the defendant to another destination / premises. On taking instructions, Mr. Godbole makes a statement that the 7 defendants are ready and willing to hand over possession of this stock to the plaintiff or their representative as authorised by them. Defendant no.1 has expressed readiness and willingness to hand over the possession of the stocks which were removed from the suit premises. It is directed that the same shall be handed over after an inventory of the same is made and it is duly signed by both sides. Let the needful be done and the stocks be handed over within a period of one week from today. (S. C. Dharmadhikari, J.)