1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4241 OF 2008 IN SUIT NO. 3200 OF 2008 Sakhi Fashions Pvt. Ltd. ...Plaintiffs Vs. M/s. Nainraj Enterprises Pvt. Ltd. & Ors. ...Defendants Mr. A.R. Pande, Advocate for the Plaintiffs Mr. J.J. Bhat, Sr. Counsel a/w. Mr. P.D.Shah, Advocate for Defendants CORAM : SMT. ROSHAN DALVI, J. DATED : 18TH MARCH, 2010 P.C. : 1. The Plaintiff and the 1st Defendant entered into a Leave and Licence Agreement under which the Plaintiff was to pay inter alia the security deposit of Rs.1.20 Crores, Municipal taxes, which were then Rs.69000/-, as would be determined fixed and varied by the Municipal Corporation, and the usual monthly charges. The Plaintiff has paid the usual monthly charges and deposited the security deposit. The Plaintiff also made payment of the Municipal taxes until April 2008. 4 months taxes @ 69000/- have admittedly not been paid. The amount of municipal taxes payable by the Plaintiff has accrued to Rs.2.76 lakhs. 2 2. The Plaintiff gave notice of termination of the agreement and offered to hand over possession and demanded refund of security deposit of Rs.1.20 Crores. The agreement was to be terminated on 31st August 2008 as per the notice of termination given in consonance with the agreement of the parties under the Leave and Licence Agreement. 3. The 1st Defendant did not refund the security deposit of Rs.1.20 Crores on 31st August 2008. The Plaintiff demanded the deposit as well as interest @ 12% p.a thereon and notified the 1st Defendant that it would hold the leased premises as lien until the amount was deposited in consonance with the agreement between the parties under its letter dated 26th September 2008. 4. It is the Plaintiff’s case that on 12th October 2008 the 1st Defendant took forcible possession. 5. It is the case of the 1st Defendant that it did not take forcible possession, but always had possession by virtue of keeping the keys of the premises as provided under the agreement of Leave and Licence. Since the Plaintiff had vacated the suit premises, the 1st Defendant, utilising the key which it had, took possession, not forcibly, in the week of October 2008. 6. The 1st Defendant inducted the 2nd Defendant in the suit premises thereafter. The Plaintiff sued on 18th October 2008. The 1st Defendant has deposited the security deposit of Rs.1.20 Crores, but without interest of 3 12% as agreed between the parties in the Leave and Licence Agreement. The amount has been invested. 7. The contention of the Plaintiff that the forcible possession of the suit premises was taken by the Defendants cannot be accepted in view of the fact that the Plaintiff itself wanted to hand over possession and vacated the suit premises. The 1st Defendant did have the keys of the premises as stated in the agreement between the parties itself. If the Plaintiff had continued to be in actual possession of the suit premises meant to be used for business purpose, the 1st Defendant could not have entered therein with the key in its possession. 8. The Plaintiff would, therefore, be entitled to withdraw the security deposit amount deposited in the Court. The Plaintiff would also be entitled to claim interest upon the amount of Rs.1.20 Crores as security deposit which remained with the Defendant from 31st August 2008 until it deposited the security deposit amount in Court on 3rd November 2008 without paying interest thereon. 9. The Plaintiff would have to bear the Municipal taxes that are charged as determined/fixed/varied by the Municipal Corporation from the month of May 2008. If the Plaintiff does not pay the property taxes, the premises of Defendant No.1, now in possession of the Defendant No.2, would be liable to be attached. Hence the Plaintiff cannot be returned or allowed to withdraw the amount deposited in the Court until the Plaintiff makes payment of the Municipal charges and property taxes levied by the 4 Municipal Corporation. The Plaintiff would be liable to pay the property taxes and Municipal charges until 31st August 2008. The Defendant No.1 would be liable to pay those taxes thereafter. 10.Consequently the relief prayed for by the Plaintiff can be granted with the following modifications:- a) Defendant No.1 shall deposit in Court the amount representing interest @ 12% p.a in Rs.1.20 Crores from 31st August 2008 till the date of deposit made in Court within one week from today. b) The Plaintiff and the Municipal Corporation, Defendant No.3 shall agree upon the amount payable by the Plaintiff as Municipal taxes/property charges from May 2008 until 31st August 2008. c) The Plaintiff and Defendant No.3 shall inform the Prothonotary and Sr. Master of this Court of the liquidated amount so payable. d) The Prothonotary and Sr. Master of this Court shall issue a cheque of that amount to the Municipal Corporation thereafter. This would be the amount payable until 31st August 2008. e) The Prothonotary and Sr. Master shall allow the Plaintiff to withdraw the balance amount, if any, from both the aforesaid amounts deposited to the credit of this Suit along with all accrued interest thereon. (SMT. ROSHAN DALVI, J.)