1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTON NOTICE OF MOTION NO.62 OF 2010 IN SUIT NO.4509 OF 1997 IDL SALBAU [INDIA] LTD ....Original Plaintiff No.1 IDL INDUSTRIES LTD ....Original Plaintiff No.2 Now merged into a single entity as per Order in Chamber Summons No.1053/2007 Gulf Oil corporation Limited. V/s Raman Narayan ...... Defendant Mr. Cyrus Bharucha along with Mr. Mohan Salian, Mr. Mayur Shetty, Ms. Vaijayanta Shete and Mr. Jesse Cornerious i/b M/s Gagrat & Co. for Plaintiffs. Mr. Raman Narayan applicant/Defendant present in person. CORAM: V.M. KANADE, J. DATE : 30th March, 2010 P.C:- 1. This Notice of Motion is taken out by Defendant who is a party in person. It is prayed in this Notice of Motion that the suit be rejected under Order VII Rule 11 of the Civil 2 Procedure Code for not disclosing cause of action against the Defendant. Secondly, it is prayed that the suit be dismissed taking into consideration conduct of the Plaintiffs which includes collusion, deception, pre-meditated and intentional fraud, fabrication of documents, non-disclosure of relevant and material facts and for gross abuse of process of law. Thirdly, Defendant has asked this court to draw an adverse inference from the conduct of the Plaintiffs in not giving inspection of the original documents referred to in the Plaint for over 13 years from the institution of the suit. Fourthly, he has asked this Court to admit the counter-claim filed by the Defendant. Fifthly, Defendant has prayed to permit him to pay the court fees in instalments for the counter-claim in six months. Sixthly, he has asked for direction, directing 37th ACMM’s Court, Esplanade to conduct trial on day-to-day basis and to award any other reliefs. 2. Defendant has filed affidavit-in-support of the Notice of Motion. He has also submitted separate compilation giving chronology of events and written submission of arguments made by the Defendant before this Court. Plaintiffs, on the other hand, filed their affidavit in reply to which Defendant has filed his rejoinder dated 11/03/2010. 3. Brief facts are that the Defendant was working in the employment of Plaintiff No.2 from 11/12/1984 to 30/09/1991 and the Plaintiff No.2 had permitted the Defendant to use fully furnished flat belonging to them during the period of 3 the Defendant’s employment with Plaintiff No.2. Plaintiff No. 2 were the owners of the said flat. Defendant resigned as an employee of Plaintiff No.2 on 30/09/1991 and was employed by Plaintiff No.1 on and from 01/10/1991. He, however, continued to occupy the said Flat. Then the Defendant was appointed as Managing Director of Plaintiff No.1 for a period of five years from October, 1991. Plaintiff No.1 had agreed to provide housing accommodation and, accordingly, the same flat was given to him and Plaintiffs No.2 agreed to give a licence of the said flat to Plaintiff No.1 on monthly licence fee of Rs 7,200/- and the Plaintiff No.1 permitted him to continue to occupy the said flat. Plaintiff No.2 required the said flat for their own use and, therefore, they called upon Plaintiff No.1 to hand over vacant possession of the said flat by 01/04/1994. According to Plaintiffs, however, the Defendant continued to occupy the flat and on 02/08/1994, he submitted his resignation from employment of Plaintiff No.1 and, finally, Plaintiff No.1 informed the Defendant by their letter dated 13/12/1994 that he would be relieved of his services with Plaintiff No.1 on 01/02/1995. It is the case of Plaintiffs that the Defendant, however, did not vacate the said flat and, therefore a legal notice was sent to him. Plaintiff Nos. 1 and 2, therefore, have filed this suit seeking the relief of declaration that the Defendant was trespasser in the said flat and for quite and vacant possession of the said flat and for damages for wrongful use and occupation of the said flat during pendency of the suit. Defendant handed over the flat some time in 1998. Further, during pendency of 4 the suit, there was amalgamation between Plaintiffs No.1 and 2 and both these companies merged into single entity by order passed by this Court in Chamber Summons No. 1053 of 2002. A complaint was filed by both the Plaintiffs in the Court of Metropolitan Magistrate against the Defendant, alleging that he has committed offence under section 630 of the Companies Act. In the said complaint, an application was made for deletion of Plaintiff No.2 herein as one of the partners and, accordingly, they were deleted as complainant No.2 and a criminal complaint was pursued further by Plaintiff No.1 alone. However, the said complaint was quashed by the order passed by this Court in Revision Application filed by the Defendant. 4. In the present Notice of Motion, it is alleged by the Defendant that the plaint does not disclose any cause of action against the Defendant, firstly because the Plaintiff No. 2 had given the flat to Plaintiff No.1 on leave and licence basis who, in turn, had given the flat to the Defendant as an employee. It is contended that, therefore, Plaintiff No.2 at the highest could have cause of action against Plaintiff No.1 but not against the Defendant herein. Defendant, who appears in person, invited my attention to paragraphs 8 and 10 of the plaint and pointed out that Plaintiffs had no cause of action against him in view of plaintiffs’ admission/averments in the plaint. It is further submitted that, in the plaint, no details and documents were shown as to how the Defendant was put in vacant possession of the 5 flat by Plaintiff No.1. It is further contended that, in the plaint, nowhere it is mentioned that Plaintiff No.1 had asked the Defendant to return the vacant and peaceful possession of the flat. It is further contended that Plaintiffs had colluded in fabricating Exhibit-B for the purposes of the suit. It is further contended that none of the Exhibits in the Plaint have anything substantive to say or do about the suit flat. It is then contended that Exhibits “A”, “B”, “C” “D” and “G” were used deceptively, fallaciously for the purpose of misleading and creating an illusion about existence of cause of action against the Defendant. Secondly, it is contended that the Plaint was liable to be dismissed for non-compliance with order for discovery under Order XI, Rule 21 of the Civil Procedure Code. It is submitted that this Court by order dated 25/07/2007 had directed the Plaintiffs’ advocate to obtain original documents from the Small Causes Court’s Godown and give inspection of them to the Defendant. It is submitted that, however, Plaintiffs stated that case papers were not traced and, therefore, they suggested that certified copies of the original documents were available for inspection. It is further submitted that on account of failure to comply with the order of this court, the suit is liable to be dismissed. Thirdly, it is submitted that the Plaintiffs have not disclosed the relevant and material facts and therefore on the ground of non-disclosure of relevant and material facts, the suit is liable to be dismissed. Reliance is placed on the judgment in S.P. Chengal Varayan Naidu v. Jagannath1. It is also submitted that Plaintiffs have come to the Court 1 (1994) 1 SCC 1 6 with unclean hands and they have abused the process of law. He invited my attention to the Chart of legal cases in his written arguments. He also took me through the chronology of events. 5. On the other hand, Counsel for Plaintiffs submitted that though prayer clauses (a) and (b) of the Plaint had become infructuous since the Defendant had handed over possession of the suit flat in 1998, prayer clause (c) still would survive since the plaintiffs are claiming damages for wrongful use and occupation of the said flat. It is submitted that Plaintiff Nos. 1 and 2 had filed a suit seeking vacant possession of the said flat which was owned by Plaintiff No.2 and which was in wrongful use and occupation of the Defendant. It is submitted that even after resigning from employment of Plaintiff No.1 Defendant had continued to be in occupation of the said flat and, therefore, Plaintiffs were entitled to claim compensation and damages for wrongful use of the said flat by the Defendant. It is submitted that, therefore, it could not be said that there was no cause of action against the Defendant. Further, it is submitted that Plaintiff Nos. 1 and 2 had mered into one company and, as such, Plaintiffs were entitled to claim damages for wrongful use of the said flat. 6. In my view, there is much substance in the submissions made by the learned Counsel for the Plaintiffs. It is alleged that the Defendant continued to use and occupy the said flat even after he resigned and if the said fact is established, the 7 Plaintiffs would then be entitled to claim damages from the Defendant for wrongful use and occupation of the said flat. Therefore, contention of the Defendant that there was no cause of action against him cannot be accepted. Hence prayer clause (a) of the notice of motion cannot be granted. 7. So far as prayer clause (b) in the Notice of Motion is concerned, Defendant is seeking dismissal of the suit on account of conduct of the Plaintiffs. No such relief can be granted in a summary manner by way of interlocutory proceedings and, therefore, this relief cannot be granted. So far as prayer clause (c) is concerned, Defendant had asked for inspection of original documents referred to in the plaint. A criminal complaint had been filed by Plaintiffs under section 630 of the Companies Act. The said documents pertaining to the said complaint were in the 14th Metropolitan Magistrate’s Court, Girgaum, Mumbai and during the pendency of the suit, the criminal proceedings were quashed. Plaintiffs had made inquiries with the 14th Metropolitan Magistrate’s Court, Girgaum, Mumbai for return of the original documents and on their application it was noted that papers could not be found. Under these circumstances, therefore, it cannot be said that there is non- compliance of the order passed by this Court. Prayer clause (c) also therefore cannot be granted. So far as prayer clause (d) of the Notice of Motion is concerned, the said prayer cannot be granted in this Notice of Motion since, apparently, the Defendant does not appear to have taken leave of this 8 Court while filing counter-claim after 10 years after the suit was instituted and, therefore, liberty is granted to the Defendant to take out appropriate proceedings for the said relief. Similarly, so far as prayer clause (e) is concerned, the said relief cannot be granted in this Notice of Motion and liberty is granted to Defendant to take out appropriate proceedings. So far as prayer clause (f) is concerned, no direction can be given by this Court to criminal court and Defendant will have to take out appropriate proceedings for the same by filing criminal application in this court, if so advised. Prayer clause (g) of the Notice of Motion also cannot be granted since it has not been substantiated as to how the said fraud has been committed. An additional affidavit has been filed by the Defendant for the purpose of pointing out as to how the fraud was committed more particularly in respect of the document at Exhibit-B. In my view, the said aspect cannot be considered at this stage and it is always open for Defendant to raise the said issue at the time of hearing of the suit. 8. There is no merit or substance in the submissions made by the Defendant who is appearing in person. No relief in the Notice of Motion, therefore, can be granted. Notice of Motion is dismissed. Hearing of the suit, however, is expedited. (V.M. KANADE, J.)