1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.315 OF 1984 M/s.Gordhandas Ranchhoddas & anr. ...Plaintiffs. vs. M/s.Pal Goods Transport Co. ...Defendants. --- Mr.P.R.Naidu, for Plaintiffs. Mr.R.R.Sharma, for Defendants. CORAM: S.C.DHARMADHIKARI,J. DATED: 21st March, 2009. P.C.:- 1. The suit is filed for possession of immovable property. The plaintiffs have initially stated that they are a partnership firm, but subsequently the plaint was amended and the 2 plaintiffs are suing in the capacity as sole proprietorship concern of Shri.Prashant Subhashchandra Thakkar. The plaintiff no.2 has become a sole proprietor after 17th March,1997. 2. It is stated that the Board of Trustees of the Port of Bombay are the owners of a plot of land which is, more particularly, described in paragraph 2 of the plaint. The property was leased for a period of 50 years to one Jerbai Behram. It is stated that the Lessee constructed a warehouse on the plot of land and the said warehouse became part of the property demised to the Lessee. By several deeds of assignment, the leasehold rights have been assigned and one Subhashchandra Shamji has become entitled to leasehold rights. The warehouse has been described, more particularly, in paragraph (3) of the plaint. 3. Subsequently, it is stated that the plaintiffs become entitled to the rights and they granted warehousing facilities to the defendants as, more particularly, set out in paragraph (5) of the 3 plaint. 4. The terms and conditions have been agreed upon and there is a document in that behalf, a copy of which is annexed at “Exhibit B”. The plaintiffs stated that they have permitted storage of goods and packages of the defendants in the premises covered by the agreement at “Exhibit B”. But later on it was noticed that the plaintiffs were not handed over possession of the premises despite the agreement came to an end. The entire sequence leading upto the plaintiffs calling upon the defendants to pay the outstanding sums and to hand over possession has been set out in the plaint. It is stated that the plaintiffs' sign board and name board were illegally removed. It is, then, stated that the defendants filed Rent Act Declaratory Suit (Stamp) no.6679 of 1982 against the plaintiffs in the Court of Small Causes Court, Bombay on 2.11.1982 claiming declaration that they were protected licensee or deemed tenants. The suit has been dismissed and yet the plaintiffs have not been handed over possession of the premises. That is how, the instant suit for 4 possession and mesne profit has been filed. 5. There is written statement filed on record, and therefore, issues were settled in terms of the Plaint and Written statement. The issues settled are as below:- “1. Whether the Plaintiffs prove that they are tenants of assignees of B.P.T., Subhash Shamji in respect of Suit Godown i.e. admeasuring 2200 sq.feet, Corner or 15 Surat Street, 160 Sant Tukaram Road, Bombay – 400009 ? 2. Whether the Plaintiffs prove that warehousing facility was granted to the defendants for storages of packages in the part of suit godown situated at Corner of 15 Surat Street, 160 Sant Tukaram Road, Bombay- 400009, vide letter dated 12.8.1970 with terms and conditions ? 3. Do the Plaintiffs prove that similar facilities were also offered to various other parties in the Suit Godown ? 4. Whether the Plaintiff's prove that defendants had expressly admitted vide 5 letter dated 8.1.1972 that it is Warehousing Contract which was entered into on 12.8.1970 with Plaintiff and acted accordingly ? 5. Whether Plaintiffs prove that Defendants were required to make payments of Warehousing charges as per bills submitted by the Plaintiffs ? 6. Whether the Plaintiff's prove that Defendants were irregular in paying the bills to the Plaintiffs ? 7. Whether the defendants prove that they have right of making alteration and additions under the letter dated 12.8.1970 without consent of the Plaintiffs ? 8. Whether Defendants prove that they were declared as tenants in respect of Suit godown and the claim was adjudicated by the Small Causes Court at Bombay ? 9. Whether Plaintiffs prove that the Defendants have become tresspassers due to breach of contract committed by them ? 10. Whether the Plaintiff's have right to terminate the Warehousing Contract dated 12.8.1970 for committing the breaches of 6 terms and conditions? 11. Whether the Plaintiff's are entitled to recover the possession of 2000 sq.ft. area (including Mesanine) occupied as godown by the Defendants situated 15 Surat Street, Bombay-400009 ? 12. Whether the Plaintiffs are entitled to claim from the Defendants recovery of possession of the Suit godown for committing the breaches of terms and conditions of letter dated 12.8.1970 and consent terms of 22.11.1984 ? 13. Whether the Plaintiffs are entitled to claim repairs charges for Roof from the defendants as directed by the Hon'ble Supreme Court of India ? 14. Whether the Plaintiffs are entitled to claim compensation and damages from the Defendants as set out in the particulars of claims ? 15. Whether the Plaintiffs are entitled to the reimbursement of the amounts paid to High Court Receiver after being handed over possession of the Suit Godown as Agent of the Receiver ?” 7 The directions were given to file affidavit in lieu of examination-in-chief and the original documents, copies of the same were handed over to Mr.Sharma Advocate appearing for defendants by Shri.Naidu Advocate appearing for plaintiffs. The matter appeared before the Court earlier, and Mr.Sharma sought time to take instructions. At one stage he stated that he does not wish to continue as Advocate for defendants. 6. However, today when the matter was placed before the Court for ex-parte decree, Mr.Sharma stated that the defendants do not wish to cross examine the plaintiffs but he is ready and willing to submit to a decree in terms of prayer clause (a) and (b) of the plaint. He further submitted that the sole proprietor Mr.Subhashchandra Shamji has since expired, his widow is not interested in contesting the claim of the plaintiffs. 7. The request of Mr.Sharma is that the Court should take lenient view of the matter and not pass 8 any decree in terms of prayer clause (c), (d) and (e) of the plaint. 8. However, Mr.Naidu submits that the affidavit of evidence has gone unchallenged. There is no dispute raised about the contents of the documents. If the defendants admit that the possession is wrongful and that it was not entitled to hold on the premises in question, then it is clear that a decree in terms of prayer clause (c) and (d) be passed and inquiry into mesne profit be ordered. 9. Having perused the plaint and annexures thereto so also the written statement and affidavit of evidence, there is substance in the contentions of Mr.Naidu that the plaint allegations are proved. Despite the written statement being filed, the defendants have not come forward to cross-examine the plaintiffs on the contents of the affidavit and the documents. With regard to the each of the documents produced, the witness has deposed in his evidence and has proved their contents. The plaintiffs' witness has not been cross examined in so far as the case of 9 the plaintiffs, leave alone, that set up by the defendants in the written statement. The defendants have not led any evidence. Considering the fact that the plaintiffs have been deprived of possession of the premises and further the Court Receiver, High Court, Bombay having been appointed on 22.11.1984, it would not be fair, just and proper to deprive the plaintiffs of the amounts which are lying deposited with the Court Receiver. It is clear from the orders passed by this Court that the defendants were put in possession at monthly compensation of Rs.775/-. That was during the continuance of the arrangement between parties for warehousing. However, moment that came to an end, the suit was filed. Even when a Receiver was appointed, the possession was not handed over by the Defendant to the Court Receiver. The Court Receiver took forcible possession by breaking open the lock on 17.8.2002. An appeal was filed against that order permitting breaking open the lock and taking forcible possession, which was dismissed by the Division Bench of this Court. The matter was carried to the Supreme Court, that Special Leave Petition was dismissed on 16.12.2005. The plaintiffs were put in possession as 10 agent of the Court Receiver on 1.2.2006. However, prior thereto the defendants were continuing as an Agent of Court Receiver on monthly payment of Rs.2800/- per month. 10. Mr.Sharma appearing for defendants states that the defendants have no objection if the entire amount deposited with the Court Receiver, with accrued interest, is paid over to the plaintiffs. Accordingly, it is directed that the Court Receiver stands discharged without passing accounts but on payment of usual cost and expenditure incurred by the Court Receiver. However, the amount deposited with him with Accrued Interest be allowed to be withdrawn by the Plaintiffs, on production of authenticated copy of this order. 11. Having perused the entire material, I am of the opinion that as far as the claim for Damages made by the Plaintiff, there is no proof save and except their bare statement. Therefore, the suit claim cannot be decreed as far as Prayer clause (c) and (d). 11 12. Further, the sole Proprietor of Defendants having expired and a direction being issued permitting the plaintiffs to withdraw all sums deposited with the Court Receiver till date with accrued interest, I am of the view that no relief is necessary to be granted in terms of prayer clause (d) and (e) of the plaint. 13. In the result, and considering the uncontroverted material, the suit is decreed in terms of prayer clause (a) and (b), however, no relief can be granted in terms of prayer clause (c) to (e) of the plaint. 14. Needless to state that the Court Receiver shall permit withdrawal of the sums and same should be paid over to the plaintiffs with accrued interest. 15. Mr.Naidu, appearing for plaintiffs then states that appropriate order towards costs be made. He submits that the plaintiffs have incurred costs towards repairs of the roof of the suit premises and 12 these amounts have been paid by Pay Order/Cheques to the Contractor/ Architect M/s.Paralkar & Dallas. They have been appointed by the court Receiver to carry out repairs. The Court Receiver has submitted the bills and details of payment made by Pay order are produced. These amounts are paid by the plaintiffs. He submits that the Amount is Rs.34,565/-. 16. Needless to state that since these amounts are directly paid by the plaintiffs to the Agency Contractor and payments have been approved by the Court Receiver, those sums deserve to be paid to the plaintiffs. Further, the entire litigation had to be initiated only because of wrongful stand and approach of the defendants. The defendants went to the extent of filing declaratory suit in the Court of Small Causes, which suit was dismissed by the Trial Court on 13.10.1989. The plaintiffs had to contest this suit as well as for all these reasons, orders towards costs needs to be made. Hence, in addition to the amount of repair charges quantified at Rs.35,000/-, the plaintiffs shall be entitled to costs in the sum of Rs.50,000/- from the defendants. 13 17. Suit is decreed accordingly. Registry to draw up the decree on receipt of authenticated copy of this order. (S.C.Dharmadhikari,J.) ---