1 NMS.307.07-S.3526.06 & NMS.3282.09-S. 3526.06.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 307 OF 2007 IN SUIT NO. 3526 OF 2006 ALONG WITH NOTICE OF MOTION NO.3282 OF 2009 IN SUIT NO.3526 OF 2006 Everest Industrial & Construction Co. Ltd. ...Plaintiffs Vs. M/s. Book Deals, a Division of The Colaba Land & Mill Company Ltd. & Ors. ...Defendants Mr. J.G. Damani for the Plaintiffs Mr. F.B. Pooniwala i/b. Ms. Rekha Shukla for Defendant No.1 in support of Notice of Motion No.3282/2009. Mr. M. Subramaniam for Defendant No.2 CORAM : SMT. ROSHAN DALVI, J. DATED : 25TH NOVEMBER, 2011 P.C. : 1. The Notice of Motion taken out by the Plaintiff is for making payment of Rs.1219680/- by the Defendant No.1 as per an order passed by the Court of Small Causes in a notice taken out by the Plaintiffs herein as the Defendant No.1 in that suit against the Defendant No.1 herein who had filed that suit as an RAD Suit No. 2025/1996. 2. The Plaintiffs created a licence on 26th October 1989 in favour of the Defendant No.1 permitting the Defendant No.1 to warehouse his 2 NMS.307.07-S.3526.06 & NMS.3282.09-S. 3526.06.sxw goods in the Plaintiffs’ godowns at Prakash Cotton Mills Compound, Hanuman Galli, Lower Parel, Mumbai-400 013 at the rate of Rs.2/- per sq. ft., per week of the area utilised by the Defendant No.1 for keeping his goods and also accepted a deposit of Rs.25,000/- in cash. The letter of the Plaintiffs to the Defendant No.1 shows the consideration payable per week for the premises. The said permission was to be in force for 3 years. There is a stipulated escalation clause for enhancement of the warehousing compensation rate at 20% thereafter. This letter accepted by the Defendant No.1 constitutes the contract between the parties. The contract is of licence of the suit premises by the Plaintiffs to Defendant No.1. 3. This suit is filed on trespass. Prayer clause (a) requires the declaration that the Defendant No.1 is a trespasser in the suit premises. Prayer clause (b) is for a money decree for the aforesaid amount. 4. The very first averment in the plaint is that the Plaintiffs granted permission to Defendant No.1 to use the suit premises being the godown at Prakash Cotton Mills compound as warehousing premises on weekly compensation. 5. The suit is, therefore, misconceived as an action in trespass. The suit is, therefore, on the licence granted by the Plaintiffs. This Court is, therefore, not the proper Court having inherent jurisdiction to try the suit. The suit must be returned to proper Court for filing under Order 7 Rule 10 of the C.P.C. 3 NMS.307.07-S.3526.06 & NMS.3282.09-S. 3526.06.sxw 6. Defendant No.1 has taken out the Notice of Motion under Section 9A of the CPC to frame the preliminary issue of jurisdiction. As stated herein above the Court’s inherent jurisdiction is not seen. Hence the plaint is returned to proper Court and both the Notices of Motion are disposed off accordingly. 7. The office shall return the plaint to the Plaintiffs within 2 weeks from today and the Plaintiffs shall be entitled to present it to the proper Court. 8. By consent of the parties the suit would be on board of proper Court on 17th January 2012. Hence, no further writ of summons need be served upon the Defendants under the provisions of Order 7 Rule 10A (4) of the C.P.C. (SMT. ROSHAN DALVI, J.)