1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1959 OF 2010 Sterling Investments Corporation Pvt Ltd. .. Petitioner versus Travel Corporation (India) Ltd. .. Respondent Mr.A.A.Kumbhakoni i/by Mr.L.M.Acharya for the petitioner. Mr.Vijaysinh Thorat Sr.Advocate with Mr.Vaibhav Sugdare i/by Ms.Sangita Gudhka for the respondent. CORAM : A.S.OKA, J. DATE : 18th March 2010. P.C.: . I have heard the submissions of the learned counsel appearing for the parties. By this writ petition under Article 227 of the Constitution of India ,the petitioner who is the original defendant has challenged the order passed by the trial Court of granting interim injunction which has been confirmed in the appeal by the Appeal Bench of the Court of Small Causes. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. The respondent has filed a suit for declaration 2 of tenancy in respect of the suit premises more particularly described in paragraph 1 of the plaint. The case made out in the plaint in short is that the respondent was a monthly tenant occupying area of 4000 sq.ft on the 1st floor of the building known as “Mon Repos” and a large garage premises approximately admeasuring 3000 sq ft. in the same building. It is alleged in the plaint that in the year 1992 the premises originally let out to the respondent required extensive repairs and there was an understanding arrived between the parties under which it was agreed that the respondent would be continued as a tenant in respect of the suit premises admeasuring about 1400 sq.ft out of the larger premises initially occupied by the respondent. It was agreed that the balance area would be surrendered by the respondent to the petitioner. The case made out in the plaint is that the respondent was required to remove itself from the larger premises occupied earlier for the purposes of enabling the petitioner to carry out the work of repairs and renovation. After completion of renovation, the respondent was to re-occupy the premises of area of 1400 sq.feet . It is stated that an agreement was accordingly entered into between the parties on 11th September 1992. The terms and conditions of the agreement have been set out in the plaint. It is stated that the repairs were to be completed within a period of eighteen months, but the petitioner could not complete the repairs within the stipulated time. According to the 3 respondent, as repairs could not be completed by the petitioner, a temporary accommodation was granted to the respondent. For that purpose an agreement dated 29th April 1994 was executed between the parties which was styled as “Business Service Agreement”. A reference has been made to certain terms and conditions incorporated in the said agreement. It is stated that after renovation was completed, the respondent occupied the suit premises as a tenant which has been in exclusive possession of the respondent. It is alleged that the respondent has been paying monthly rent of Rs. 2375/- to the petitioner for which rent receipts are being issued. It is alleged that even service tax has been recovered by the petitioner. It is stated that after the respondent shifted to the suit premises, the agreement dated 29th April 1994 came to an end. Reliance is placed on various documents such as telephone bills, licence under the Bombay Shops and Establishment Act etc. Reliance is placed on the fact that rent was being paid by the respondent to the petitioner. Thereafter, reference has been made to the correspondence between the parties. In the said suit for declaration, an application for temporary injunction in the form of an interim notice was taken out by the respondent. The said notice was contested by the petitioner by filing reply. It was contended that the respondent-Company has been taken over by Thomas Cook India Ltd and under the cover of the 4 respondent the said company was desirous of setting up a training centre in the suit premises. It was contended that the respondent was in possession on the basis of the agreement dated 19th April 1994 and the said agreement has been terminated by notice dated 15th December 2008. It is contended that on execution of the said agreement of the year 1994, the respondent has given up rights under the earlier agreement of the year 1992. It is submitted that the respondent was never in exclusive possession of the suit premises. It is stated that the respondent has stopped the user of the suit premises and has been keeping only junk material in the suit premises. It was submitted that the suit for declaration of the tenancy was not maintainable. The learned trial Judge granted temporary injunction restraining the petitioner from interfering with the possession of the respondent. By the impugned order, an appeal preferred by the petitioner has been dismissed. 3. The learned counsel appearing for the petitioner invited my attention to the averments made in the plaint. He submitted that after the agreement was executed by and between the parties on 11th September 1992 , the respondent cannot claim to be a tenant in respect of the premises earlier held on the 1st and ground floor. He pointed out that the respondent has admitted that the agreement 5 dated 29th April 1994 between the parties was executed and was acted upon. Inviting my attention to the material averments in the plaint, he pointed out that the respondent has not even stated the year in which possession of the suit premises was handed over as a tenant. He invited my attention to the averments made in the plaint in which it is admitted that in May 1994 the respondent occupied temporary premises. He submitted that there are no averments as to how and when the respondent obtained possession of the suit premises as a tenant. He submitted that material averments in the plaint have been completely glossed over by the Courts below. He submitted that what was operating between the parties was agreement dated 29th April 1994 which was only a facility granted to the respondent-plaintiff which was to be availed of during fixed hours every day. He submitted that exclusive possession was not given under the said Agreement. He submitted that the so called rent receipts relied upon by the respondents are not established to be the rent receipts in respect of the suit premises and only on the basis of two rent receipts, the case made out by the respondent ought not to have been accepted. He submitted that the agreement of the year 1992 has not been acted upon and there is no material on record to show that possession was handed over of the suit premises under the said agreement. 6 4. I have carefully considered the submissions. The Courts below have passed a discretionary and equitable order of temporary injunction by which possession of the respondent has been protected. The agreement of 11th September 1992 shows that the respondent was a admittedly a monthly tenant in respect of an area of 4000 sq.ft on the 1st floor and area of 3000 sq.ft on the ground floor of the said building Mon Repos. The respondent agreed to handover possession of the suit premises in respect of which the respondent was admittedly a tenant to enable the petitioner to carry out repairs of substantial nature including the work of renovation such as plastering, painting etc. The agreement records that after the repairs are carried out, the petitioner will place the respondent in possession of carpet area of 1400 sq.feet on the 1st floor of the building at the monthly rent of Rs.1125/-. As of today, there is no dispute about execution of the said agreement. The subsequent agreement dated 29th April 1994 provides for payment of a sum of Rs.59,500/- per fortnight by the respondent. The said agreement is for making available an earmarked portion in the same building to the respondent for using it as a business centre. The case of the respondent is that the said agreement was executed as the petitioner could not complete the work of renovation and repairs within the time stipulated in the 7 agreement dated 11th September 1992. There is nothing on record to show that the respondent surrendered or relinquished its right under the agreement dated 11th September 1992 under which the respondent was entitled to be placed in possession of an area of 1400 sq. feet as a tenant out of the larger area in possession of the respondent as a tenant prior to execution of the said agreement. Reliance has been placed by the respondent on various documents such as registration certificate under the Bombay Shops and Establishments Act, 1948 and telephone bills for establishing the possession over the suit premises. The two receipts have been produced on record dated 1st May 2008 and 1st December 2008. The receipts record payment of a sum of Rs.2375/- plus service tax of Rs. 294/- as rent/compensation for use of 1st floor on S.P.Centre (Mon Repos). The first receipt records that the amount is for month of May 2008 in terms of tenancy printed overleaf. The second receipt is for the same amount for December 2008. The receipts prima facie show that the respondent was not making payment in terms of the agreement of the year 1994. The Courts below have considered this aspect and the fact that the respondent was admittedly a tenant in respect of a larger area out of which suit premises constitutes area of 1400 sq.ft of carpet area. Prima facie , there is documentary evidence on record to show possession of the suit premises by the 8 respondent. Rent receipts prima facie show that the possession of the respondent was not on the basis of the agreement of the year 1994. Even according to the case of the petitioner the so called temporary arrangement of 1994 continued till it was determined in the year 2008. 5. It cannot be ignored that the respondent was admittedly was in possession of larger area of 4000 sq.feet on the first floor of the same building as a tenant. Under the agreement of the year 1992, the respondent vacated the said premises as the petitioner was desirous of carrying out the work of repairs and renovation. The understanding recorded in the said agreement is that after the repairs are carried out, the respondent will re-enter and possess area of 1400 sq. feet out of the said larger premises. The suit premises is the said area of 1400 sq. feet. Even according to the case of the petitioner, junk material of the respondent is lying in the suit premises. Considering the concurrent findings recorded by the Court below on the basis of the prima facie material on record, no case for interference is made out in writ jurisdiction under Article 227 of the Constitution of India. Petition is rejected. It is however made clear that all contentions of the parties on merits of the suit are kept open and the suit will be decided without being influenced by the tentative observations made by the Courts below as well as this Court. 9 6. At this stage, learned counsel appearing for the petitioner prays for continuation of interim stay by pointing out that order of injunction of the trial Court remained stayed during the pendency of the appeal. The learned senior counsel appearing for the respondent opposed the said prayer by contending that order of temporary injunction cannot be stayed. 7. The parties will maintain status-quo as of today for a period of four weeks from today. (A.S.OKA,J)