1 CRA.229.07 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 229 OF 2007 Wasimuddin Nooruddin Shamshi and another. ... Applicants Versus Mrs. Appi Sankappa Shetty and others. ... Respondents ----- Mr. A.S.Khandeparkar i/b Khandeparkar and Associates for the Applicants. Mrs. Zulekha Sayed for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 15 th / 20 th December, 2011. ORAL JUDGMENT: 1 By this revision application, the Applicants who are the original Defendants have taken an exception to the decree for possession passed in a suit filed by the Respondents under the provisions of the Bombay Rents, Hotel and Lodging House Control Act, 1947 (hereinafter referred to as “the said Act”). It is alleged in the suit filed for eviction by the Respondents that the Applicant No.2 was the tenant in respect of the Shop No.5 – 7 (hereinafter referred to as 2 CRA.229.07 the “suit premises”) situated on the ground floor of the building more particularly described in paragraph No.2 of the plaint. The first ground of eviction pleaded in the plaint is that the suit shop is not being used by the Applicant No.2 for a period of more than six months before the date of institution of the suit. It is alleged that in fact the Applicant No. 2 has not been using the suit premises for more than seven years and in any event for a period of six months prior to the filing of the suit. It is alleged that the Applicant No.2 tried to part with the possession of the suit premises and was trying to create third party rights. By amending the plaint, a ground of eviction was added alleging that the Applicant No.2 has unlawfully and illegally transfered his interest in the suit premises to the Applicant No.1. It is alleged that the Applicants have carried out the extensive work of structural additions and alterations in the suit premises which is of permanent nature and they have caused damage to the suit premises. 2 The suit was contested by the Applicant No.1 by filing written statement. The Applicant No.1 in the written statement 3 CRA.229.07 contended that the Applicant No.2 vide a Deed of Assignment dated 19 th November, 1996 has assigned and transfered unto the Applicant No.1 the suit premises together with running and going concern and the business on the terms stated therein. It is alleged that the deed of assignment has been lodged in the office of Sub-Registrar and has been duly registered on 12 th April, 1997. As far as the Applicant No.2 is concerned, he has filed the written statement dealing with the averments made in the unamended plaint. After the trial, the learned trial Judge dismissed the suit on all counts. The learned trial Judge held that the deed of assignment executed by the Applicant No.2 in favour of the Respondent No.1 is legal and valid. In the appeal preferred by the Respondents before the Appeal Bench of the Court of Small Causes, a decree for possession on the ground of unlawful subletting has been passed. The finding recorded by the Appellate Court is that the Applicant No.2 had stopped business atleast from the end of the year 1995 and when the alleged deed of assignment was executed, there was no business which was carried on in the suit 4 CRA.229.07 premises. The Appellate Court, therefore, proceeded to pass a decree on the ground of unlawful subletting. The said decree has been impugned in this revision application. The revision application has been preferred by both the Defendants. 3 The learned counsel appearing for the Applicants has taken the Court through the pleadings and notes of evidence on record. He has taken the Court through the findings recorded by the trial Court as well as the findings recorded by the Appellate Court. He pointed out that the ground of illegal subletting was added by amending the plaint in the year 1999. His submission is that the finding of the Appellate Court is based only on the Municipal Licence at Exhibit – 9 which shows that the same was valid only upto 31 st December, 1995. He submitted that in fact, the said licence was renewed on 12 th December, 1995 itself till 31 st December, 1996. It must be noted here that this submission was canvassed only after this Court started dictating the judgment. The order dated 16 th December, 2011 passed by this Court reads thus: 5 CRA.229.07 “. The submissions were heard earlier. The dictation of the judgment commenced yesterday when the learned counsel for the Applicant was not present. Today, he tendered on record a photo copy of the Municipal Licence. The photo copy of the Municipal Licence is taken on record and marked 'X' for identification. He states on instructions of the Applicant No.1 who is personally present in the Court that the photo copy tendered today is the true copy of the Municipal Licence which is marked as Exhibit – 9. He states that the finding recorded by the Appellate Court in paragraph No.29 is factually incorrect. He states that as the record is not called for by this Court, he may be permitted to obtain certified copy of the Exhibit – 9. 2 No such factual contention has been raised in the Memorandum of the Revision Application. However, by way of indulgence, time is granted till 20 th December, 2011 at 03:00 p.m. The revision application shall be shown on daily board under the caption “for dictation of judgment”.” 4 Today, when the matter is kept for dictating further judgment, the learned counsel appearing for the Applicants produced a certified copy of the said trade licence of the Applicant No.2 at Exhibit – 9 which shows that the licence was renewed only upto 31 st December, 1995. Thus, it appears that the aforesaid statement made by the Applicant No.1 through the learned counsel is utterly false. It must be noted that before the statement was recorded, the Applicant 6 CRA.229.07 No.1 was given time to take instructions from the lawyer representing him before the trial Court. The learned counsel appearing for the Applicants pointed out that there is a registered deed of assignment under which the business of the Applicant No.2 - tenant has been assigned to the Defendant No.2 as a going concern and incidental to the transfer of the business and goodwill, the tenancy has been transfered to the Applicant No.1. He invited attention of the Court to the proviso to Sub-Section (1) of Section 15 of the said Act. He pointed out the notification published in the official gazette issued by the State Government in exercise of powers under the proviso to Sub- Section (1) of Section 15 of the said Act and submitted that as the transfer of interest has been effected as permitted by the notification, the prohibition against subletting incorporated in Sub-Section (1) of Section 15 will have no application. He submitted that there is more than enough evidence on record to show that the Applicant No.2 was carrying on business of dealing with scrap material in the suit premises till the date of execution of the deed of assignment and in fact, the 7 CRA.229.07 Applicant No.1 continued the said business for a period of six months after the execution of the deed and thereafter, changed the business. He, therefore, submitted that when the deed of assignment was executed, the Applicant No.2 had a running business as a going concern which was transfered to the Applicant No.1 alongwith stock-in- trade and the goodwill. He submitted that only on the basis of the trade licence at Exhibit – 9, the Appeal Bench of the Court of Small Causes has come to the conclusion that on the date on which the deed of assignment was executed, the Defendant No.1 was not carrying on any business. He, therefore, submitted that in view of the notification dated 21 st September, 1948, the prohibition against sub- tenancy will not apply in the present case. He, invited attention of the Court to the fact that the accounts of the business carried out by the Applicant No.2 were produced through an Accountant and the same were proved which also show that the business was being carrying on by the Applicant No.2 till the date of execution of the deed of assignment. 8 CRA.229.07 5 I have given careful consideration of the submissions. Admittedly, the Applicant No.2 was the tenant in respect of the suit premises which is a business premises. The suit was amended in the year 1999 for incorporating the ground of illegal subletting by the Applicant No.2 to the Applicant No.1. The Applicant No.2 was stated to be carrying on business dealing with scrap in the suit premises. As pointed out earlier, the only defence to the allegation of sub-tenancy is the execution of the registered Deed of Assignment dated 19 th November, 1996 by the Applicant No.2 in favour of the Applicant No.1. The deed of assignment was executed pending the suit. Under Sub- Section (1) of Section 15 of the said Act, there is a complete prohibition on the tenant subletting or assigning or transferring in any manner his interest in the premises subject matter of tenancy. The proviso to Sub-Section (1) of Section 15 of the said Act confers power on the State Government to issue notification in the official gazette and permit in any area the transfer of interest in the premises held under such leases or class of leases as may be specified. Accordingly, the 9 CRA.229.07 then Government of Bombay issued a notification dated 21 st September, 1948. The said notification permits all the transfers and assignments by lessees of their interest in leasehold premises to the extent specified in the schedule annexed to the said notification. In the present case, we are concerned with clause (2) of the Schedule which reads thus: “transfer or assignment incidental to the sale of a business as a going concern together with the stock in trade and the goodwill thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such leasehold premises together with the business and the stock-in trade and goodwill thereof.” To bring the case within the exception to Sub-Section (1) of Section 15 of the said Act, the transfer or assignment must be such that it is covered by the aforesaid clause (2). The transfer or assignment must be of a business as a going concern together with the stock-in-trade and the goodwill thereof. The transfer or assignment must be of the entire interest of the transferor or assignor in such leasehold premises together with the business and the stock- 10 CRA.229.07 in-trade and goodwill thereof. The burden was on the Applicant No.2 to establish that the case falls in clause (2) of the Schedule to the notification. Therefore, it was necessary to the Applicant No.2 to prove that on the date of the execution of the deed of assignment, he was carrying on business in the suit premises and that the business as a going concern together with stock-in-trade and goodwill was assigned by him to the Applicant No.1. 6 Thus, the burden to bring the case within the exception was on the Applicant No.2. It must be noted here that the Applicant No.2 – tenant did not step into witness box and only the Applicant No.1 stepped into witness box. He stated that the Applicant No.2 was carrying on scrap material business in metals. He stated that he was not aware of the pending suit at the time of execution of the deed of assignment. He admitted that he has not produced the electricity bills on record though he has received the possession of the electricity bills and rent bills from the Applicant No.2. He stated that the electricity bills were in his custody. If the Applicants had produced the electricity 11 CRA.229.07 bills, it could have through light on the question whether the business was being carried on in the suit premises as of 19 th November, 1996. He stated that he started imitation jwellary business in the suit premises from the year 1997. He denied that the suit premises was closed and kept unused till the year 1997. 7 The Applicant No.1 examined one Mr.Shaikh Mohd. Hussein who stated that he was working with the Applicant No.1 and was also looking after the accounts of the business of the Applicant No.1 of imitation jwellary. He stated that after the Applicant No.1 took over the shop premises, he was running scrap business and he himself was looking after the accounts of the said business as well. He produced cash book and ledger of the said business. The Applicant No.1 also examined one Mr.Natwarlal Kapoorchand Maniyar, who was allegedly working as a part time Accountant with the Applicant No.2. He produced in evidence cash book and ledger for the period between 1 st April, 1995 to 31 st March, 1996 and 1 st April, 1996 to 26 th November, 1996. It is pertinent to note that the Applicant 12 CRA.229.07 No.2 was the best witness to depose that he was carrying on business till 19 th November, 1996. However, he did not step into witness box. No other documents such as bill books, correspondence etc. were produced by the Applicant No.2. Mere production of the account books and ledgers through an Accountant is not sufficient to prove that the Applicant No.2 was carrying on business till 19 th October, 1996. No documents in support of the Account Books are produced. The Applicant No.2 did not step into witness box to prove the contents of the Account Books. 8 The document at Exhibit – 9 which is the trade licence granted by the Municipal Corporation to the Applicant No.2 in the name of M/s. Shanti Metal and Company for carrying on scrap business. The said document shows that the licence was lastly renewed only till 31 st December, 1995. As stated earlier, during the course of dictation of the judgment, the statement of the Applicant No. 1 was recorded that the photo copy tendered by him in this Court is the true copy of the licence which is marked as Exhibit – 9 which shows 13 CRA.229.07 that the licence was renewed till 31 st December, 1996. It must be stated that before the statement of the Applicant No.1 was recorded, he was permitted to take instructions from his Advocate appearing before the trial Court. He made a bold statement that what was tendered across the bar was a true copy of Exhibit – 9. Today, when the certified copy of Exhibit – 9 is produced by the Applicants, it become obvious that what was tendered on record by the Applicants is not the true copy of the Exhibit – 9. The certified copy of the licence at Exhibit – 9 shows that the trade licence was in force only till 31 st December, 1995. The statement made by the Applicant No.1 turns out to be a completely false statement. There is no application filed for leading additional evidence. Thus, the conclusion which can be drawn from the aforesaid discussion is that there was no evidence adduced on record to show that on the date of execution of the deed of assignment, the Applicant No.2 - tenant was carrying on scrap business. For the reasons best known to the Applicant No.2, he did not step into witness box. Therefore, the finding of the Appellate Court 14 CRA.229.07 that there was no evidence on record to prove that on 19 th November, 1996, there was a going concern or business in the suit premises, is consistent with the evidence on record. Hence, no case is made out to interfere in the revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. The revision application is rejected. 9 The interim relief which was operating earlier shall continue to operate for a period of three months from today. [ A.S.OKA, J ]