- 1 - c ra207 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.207 OF 2010 Alka Bhagwan Tolani .. Applicant (Orig.Plaintiff) vs M/s Indian Oil Corporation .. Respondent (Orig.Defendant) Mr.A.A.Kumbhakoni with Ms.C.Salgaonkar for Applicant. Mr.Vishal Kanade with Ms Jyoti Sinha i.b NeGandhi Shah for Respondent CORAM: A.S.OKA,J DATE: 15th September, 2010 P.C. 1. Submissions of the learned counsel appearing for the petitioner were heard on the earlier date. With a view to appreciate the submissions, a brief reference to the facts of the case may be necessary. 2. The applicant-landlord filed a suit for eviction against the respondent M/s Indian Oil Corporation in - 2 - c ra207 the court of the Small Causes Mumbai in respect of a flat more particularly described in the plaint. It was contended in the suit that the respondent was a tenant in respect of the suit flat. By a notice dated 4th October, 2000 the applicant terminated the tenancy of the respondent. It was contended that the respondent was not protected under the provisions of Maharashtra Rent Control Act, 1999 in the light of section 3 (1) (b) thereof. During the pendency of suit, on 27th February,2002 possession of the suit flat was handed over by the respondent to the applicant. Possession was received admittedly by the constituted attorney of the applicant. Two documents namely,No claim certificate and receipt of possession were admittedly signed by the constituted attorney of the applicant. On the same day, constituted attorney of the applicant addressed a letter to the Manager of the respondent- Corporation stating that one Rajesh Gurav, Assistant Manager (Administration) of the respondent while - 3 - c ra207 handing over possession of the suit flat insisted and forced the constituted attorney of the applicant to sign pre-typed letters which he described as receipts of possession of the suit flat. It was contended that certain words were put in the letters which were neither discussed nor were agreed by the applicant relating to waiving/withdrawing the outstanding rents, society charges. It was alleged that the applicant or her constituted attorney never stated that they have no claim for mesne profits. 3. An interim notice was taken out by the respondent-defendant in the pending suit contending that the respondent has handed over possession after the applicant issued no claim certificate and therefore, the suit may be decreed in terms of prayer clause (a) which related to decree for possession. On 19th August, 2008 the interim notice was discharged. However, the learned trial Judge directed the applicant to pass necessary - 4 - c ra207 endorsement on plaint regarding satisfaction of the suit claim and necessary endorsement regarding mesne profits. The suit was kept on the next day for recording endorsement. 4. The applicant did not record endorsement and thereafter carried out amendment to the plaint by adding paragraphs. In the amended paragraphs of the plaint it was contended that when the constituted attorney of the applicant went to the suit flat for taking possession, Mr.Rajesh Gurav informed her to sign two letters stating that were only formal letters and related to possession. It was alleged that the said Rajesh Gurav informed her that the said two letters will have to be signed if the applicant wanted possession. It was contended that copies of the letters were supplied subsequently. It was contended that signature of the constituted attorney of the applicant obtained on the said letters was not voluntary and she was made to sign on the threat of - 5 - c ra207 holding back the possession and under compulsion, coercion and undue influence. It was contended that signatures of the applicant were obtained by fraud, misrepresentation and with malafide intention. The amendment was carried out for reiterating the claim of the applicant for grant of mesne profits. The trial court recorded the evidence in the suit and proceeded to pass a decree directing the respondent to pay mesne profits of Rs.16,68,750/- at the rate of Rs.1,11,450/- after payment of court fees. 5. Being aggrieved, the respondents preferred an appeal. The appellate bench of the Court of the Small Causes Court allowed the appeal and dismissed the suit filed by the applicant. 6. Learned counsel appearing for the applicant submitted that the applicant had never agreed to give up claim for mesne profits and the other - 6 - c ra207 amounts due and payable by the respondent. He submitted that the case made out by the applicant is not an afterthought and on 27th February,2002 itself a letter was addressed by the constituted attorney of the applicant to the Manager (Administration) of the respondent making a grievance about the manner in which her signatures were obtained on two documents. He pointed out that the said letter was written by the constituted attorney to the respondent recording that the applicant had never agreed to give up the monetary claim including claim of mesne profits. He submitted that receipt of the said letter by the respondent is not disputed. He pointed out that in terms of the contentions raised on the very day, an amendment to the plaint was carried out raising a specific contention regarding the manner in which the constituted attorney of the applicant was forced to sign two documents. He submitted that the case made out by amending the plaint is not an after- - 7 - c ra207 thought in as much as the very case was made out on 27th February 2002 in the letter. He submitted that the specific case of the applicant is that constituted attorney was forced to sign on the documents as Mr.Rajesh Gurav Assistant Manager of the respondent stated that possession would not be given unless the documents were signed. He submitted that the respondent was admittedly not protected by the provisions of Maharashtra Rent Control Act, 1999 and therefore it is inconceivable that the said monetary claim would be given up by the applicant merely because the respondent agreed to surrender possession. He submitted that in fact to avoid the mounting liability of payment of mesne profits, the respondent agreed to surrender possession without any condition. He invited attention of the Court to the evidence of Mr.Rajesh Gurav and submitted that no evidence was adduced by the respondent to show that as a condition of the respondent surrendering possession of the suit flat, - 8 - c ra207 the applicant had agreed to give up the monetary claim including the claim of mesne profits. He submitted that in the absence of any evidence that there was such an agreement, the Appellate Court has committed an error by coming to the conclusion that the applicant had given up her right to claim mesne profits. Lastly, he submitted that on a plain reading of the so called No Claim certificate it cannot be inferred that the applicant had given up her claim for payment of mesne profits and other amounts, and therefore even assuming that no claim certificate was signed by the constituted attorney of the applicant, the applicant cannot be deprived of her claim. Lastly, without prejudice to the rights and contentions of the applicant he submitted that the applicant is even ready to give back possession provided claim of the applicant for mesne profits remains valid and enforceable. 7. I have given careful consideration to the - 9 - c ra207 submissions of the applicant. It is not in dispute that the Constituted Attorney of the applicant was authorised to receive possession of the suit flat on behalf of the applicant. It is also not in dispute that the applicant was to take possession of the suit flat through the said Constituted Attorney. It will be necessary to advert to the No Claim certificate dated 27th February,2002 which is admittedly signed by the Constituted Attorney of the applicant. It will be necessary to reproduce the relevant part of the said No Claim Certificate. “ I have requested IOC to handover the vacant possession of the flat on condition that we will withdraw the T.E.& R.Suit No.4/4 of2001 filed against IOC without making any claim for mesne profit and damages. Since IOC have accepted our request and handed over the vacant possession of the above flat on 27.2.2002, I do hereby acknowledge and confirm of having being taking quiet peaceful and vacant possession of the above flat in good and tenable conditions along with all fittings and fixtures. I do hereby declare and confirm that we have no claim whatsoever of any nature against IOC with respect of the above flat. “ (Underlines supplied) - 10 - c ra207 What it stated in the said No Claim Certificate is that the applicant will withdraw T.E.and R.Suit No.4/4 of 2001 without making any claim for mesne profit and damages. In the possession receipt admittedly signed by the Constituted Attorney of the applicant, it is stated thus : “I hereby acknowledge declare and confirm that I have received the quiet peaceful and vacant possession of the above flat from IOC on 27/2/2002 in good and tenable condition along with all fixtures and fittings towards the full and final settlement of the T.E.& R.Suit No.4/4 of 2001 filed by us against the Indian Oil Corporation Ltd (IOC) for possession for recovery of the possession of our flat let out to Indian IOC in the said flat.” (Underline added) 8. In the said letter dated 27th February, 2002 written by the Constituted attorney of the applicant it is stated thus: “Mr.Rajesh Gurav, your Assistant Manager - 11 - c ra207 (Administration) was kind to hand over the possession of above flat today and insisted and forced me to sign pre-typed 2 letters which he told me relates of receipts of the possession of premises and flat that there is no damage to the flat therefore there is no claim. “ However, I find that you have put certain words in the letter which has never been discussed or agreed by me relating to waiving/withdrawing outstanding Rents, outstanding society charges and outstanding Municipal Taxes and outstanding electricity bills not paid by you while the flat was in your possession. It is not true and I hereby deny that I requested IOCL that I have no claim for mesne profit outstanding payable as above. You have to be fair and just and reasonable to pay outstanding market rent as per Maharashtra Rent Control Act of 1999. I have submitted to you bills from time to time. Total outstanding on this account alone is Rs. 30,00,000/- which I requested you to pay I have suffered heavily for over years during which period I was paying municipal and society taxes 500 % (Five Hundred percent) more than what you were paying me as rent of petty amount of Rs.844/-. I have to pay to society over Rupees One Millions as outstandings. I request you to cooperate. Please give me an appointment so that this could be mutually sorted out fairly and reasonably. I do confirm having the possession of the flat, but, I request and insist on payment of my outstandings. “ - 12 - c ra207 9. It will also be necessary to consider what is stated in the amended plaint by adding paragraph 6A. The relevant part of paragraph 6A reads thus : 6A.” However, when the plaintiffs’ C.A. Mrs.Neetu Tolani went to take possession the defendants’ representative Mr.Rajesh Gurav told her to sign on 2 letters stating that they were only formal and related to the possession. He stated that these 2 letters would have to be signed if we wanted possession. Copies were given only subsequenlty. Mrs.Tolani was told to simply sign and was not given time to read the letters. The signature of Mrs.Tolani was obtained in these circumstances and was not voluntary. She was made to sign on the threat of holding back the possession and thus, under compulsion, coercion and undue influence. Mr.Rajesh Gurav told Mrs.Tolani that these 2 letters were formal and related to possession and thus obtained her signature by fraud, one’s representation and with malafide intention. “ (Underline supplied) 10. In the affidavit in lieu of the examination-in- chief, the Constituted attorney of the applicant on this aspect has stated thus : - 13 - c ra207 I say that I have received possession of the suit premises on the 27th February,2002. I further state that the act of handing over the possession of the suit premises itself clarifies the position that the defendants were in wrongful possession. I further state that I was given possession of the suit premises on the condition that I sign two pre typed letters. The representative of the defendant Mr.Rajesh told me that the said letter relates to the receipt of possession of the suit premises. He further informed me that absolutely no damage has been caused to the flat in whatsoever manner. It was condition precedent to sign those two letters. Mr.Rajesh Gurav coerced me to sign the letters and informed me that the letters were related only to the receipt of possession of the premises. It was only a regular routine procedure which had to be followed., I had no knowledge of the legal implications of the signing of the said two letters without going through the contents of the said two letters. I was assigned by the plaintiff to take possession of a valuble property worth in crores. I say that all of a sudden I was handed the said two letters dated 27.2.2002 by Mr.Rajesh, representative of the defendant with clear understanding that in case I do not sign the letter which is a routine procedure as alleged by them I will not get possession of the said suit flat. I was under the circumstances compelled to sign those letters. Before signing I was even not allowed to read those letters. Looking to the responsibility cast upon me by the plaintiff, I had no choice but, to sign the said letters without knowing the contents of the same and outcome of the legal implications arising therefrom. I say that thereafter under compulsion, coercion and undue influence I was compelled to sign the said two letters dated - 14 - c ra207 27.2.2002 with no alternative but to bow down before the said representative who was not willing to give the possession without my signature on the said two letters. “ (Underline supplied) 11. As pointed out earlier, in the No Claim Certificate signed by the Constituted Attorney of the applicant, it is specifically stated that the applicant had requested the respondent to hand over vacant possession of the suit flat on condition that the applicant will withdraw the suit. In the letter dated 27th February,2002 signed by the constituted attorney Of the applicant which is marked “Without prejudice”, there is a not even a whisper that the applicant had never agreed to withdraw the suit as a condition for handing over the vacant possession. In the possession receipt it is stated that the possession has been received in good condition with all fixtures and fittings in full and final settlement of the said suit filed by the applicant for possession. Thus, both the documents admittedly signed by the - 15 - c ra207 constituted attorney of the applicant clearly indicate that the applicant had agreed to withdraw the suit or not to prosecute the suit. The letter dated 27th February, 2002 written by the constituted attorney which is the earliest in point of time does not record that the applicant never agreed to withdraw the suit. In the amended plaint, a contention is raised that unless the said two letters were signed by the constituted attorney of the applicant, possession would not have been handed over. It is alleged that she was made to sign the letter on “ the threat” holding back possession and thus under “compulsion, coercion and undue influence.” In the letter dated 27th February,2002 there is no reference of any such threat, compulsion, coercion or undue influence. It is not at all specifically stated in the said letter that the said Rajesh Gurav informed the constituted attorney of the applicant that possession will not be handed over unless such letters are signed. In paragraph 6A of the plaint, - 16 - c ra207 fraud has been alleged by contending that signatures of the constituted attorney were obtained by fraud with malafide intention. Apart from the fact that there are no material particulars pleaded in the plaint as regards the alleged fraud, the existence of fraud is not at all pleaded in letter dated 27th February,2002. The allegations of fraud, force coercion and undue influence appear to be after- thought. In the evidence,the constituted attorney the applicant has gone to the extent of stating that under compulsion, coercion and undue influence she was compelled to sign the said two letters. In cross- examination, the Constituted Attorney of the applicant admitted that she is a Bachelor of Arts and she knows to read and write English. If what is alleged in the plaint and in examination-in-chief that the constituted attorney was compelled to sign under compulsion, coercion and undue influence was really correct, no one prevented the constituted attorney from coming back without taking over - 17 - c ra207 possession. It is not at all the case of the constituted attorney of the applicant that she was forced to take possession. There was no compulsion to take possession. If allegations of coercion, threat were really correct, the constituted attorney would not have taken possession and would have straight away proceeded to the police authorities for filing a complaint. The fraud is pleaded in the plaint without giving any material particulars. There is another important aspect of the matter which is to be noted is that even in the amended plaint, it is not stated that the applicant had never agreed to withdraw the suit. In the No claim certificate the said understanding is clearly recorded. Thus, the case made out by the constituted attorney of the applicant clearly appears to be an after-thought. The case is made out conveniently after taking over possession of the suit flat. It was tried to be submitted before this court even on plain reading of the no claim certificate, it is clear that the applicant - 18 - c ra207 had not given up his claim. However, the said contention cannot be allowed to be raised as it was admittedly never raised before the Court below. 12. It is also pertinent to note that in the plaint the applicant did not pray for grant of any specific amount by way of mesne profit and on the contrary the prayer clause (b) reads thus: “(b) Defendants be ordered and decreed to pay to the plaintiffs mesne profits from 1st December 2000 till they hand over vacant possession of the suit premises to the plaintiff at such amount as this Hon’ble court deem fit after enquiry under Order XX Rule 1 of the Code of Civil Procedure. “ Thus, the prayer was essentially for directing holding an inquiry regarding mesne profits. However, the trial court proceeded to pass a decree for mesne profit by quantifying the amount per month. - 19 - c ra207 13. A perusal of the impugned order of the Appellate Court shows that all relevant aspects have been duly considered. The Appellate Court observed thus : “ If we read the entire evidence of the plaintiff, it will show that plaintiff to obtain possession of the suit premises had given the letter of no relief claimed to defendant and later on changed her version and now saying that she has not given such letter voluntarily and that letter is suffering from fraud, misrepresentation, undue influence and coercion. According to us, there was no any urgency for plaintiff to go with the settlement out of the court. She did it voluntarily because she want possession of the suit premises while getting possession of the suit premises outside the court, there is always give and take settlement and that was done here by the plaintiff by taking the possession and by giving up the claim of mesne profit. But, any how later on she changed the version and continuing the matter. After getting possession on 27.2.2002 she had kept mum not approached to court disclosing about it. No complaint to court about alleged fraud, misrepresentation, undue influence and coercion to court immediately on 28.2.2002 or any other earlier date defendant took steps to compromise the dispute before the court. So this circumstance on record will go against plaintiff. - 20 - c ra207 14. Considering what is discussed above, it is not possible to find fault with the impugned judgment and order of the appellate Court in the writ jurisdiction under Article 227 of the Constitution of India. The offer given by the applicant to return the possession was given without giving up the claim under the order of the trial Court and therefore, the same will have no effect on the merits of the Revision Application. 15. Hence, there is no merit in the Revision Application. The same is rejected. A.S.Oka, J - 21 - c ra207 - 22 - c ra207