IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 271 OF 2008 NO. 271 OF 2008 NO. 271 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 1280 OF 2008 OF MOTION NO. 1280 OF 2008 OF MOTION NO. 1280 OF 2008 IN IN IN SUIT SUIT SUIT NO. 1068 OF 2008 NO. 1068 OF 2008 NO. 1068 OF 2008 Shammi Nagpal of Mumbai, Indian ] inhabitant, residing at 209, Olympus ] Apartments, Altamount Road, ] Mumbai 400026 and currently temporarily] staying AT The Hilton Towers, Nariman ] .. Appellant Point, Mumbai 400021. ](Ori.Plaintiff) Versus 1. Sudhir Nagpal of Mumbai, Indian ] inhabitant, Director of Hotel Taj- ] President, having office at 90, ] Cuffe Parade, Mumbai - 400005. ] 2. Indian Hotels Company Limited, ] a Company registered under the ] provisions of the Indian Companies ] Act, 1956, having its Registered ] Office at Mandlik House, Mandlik ] .. Respondents Road, Mumbai - 400001. ](Ori.Defendants) Mr. V.A. Thorat, senior counsel with Mr. Satish Maneshinde, Vaibhav Sugdare i/b N.S. Nappinai for the appellant. Mr. Janak Dwarkadas, senior counsel with Mr. D.D. Madon, senior counsel, Rahul Narichania i/b M/s. Harish Joshi & Co. for the respondent No.1. Mr. Iqbal Chhagla, senior counsel with Mr. Naval Agrawal i/b M/s. Mulla & Mulla & Cragie Blunt & Caroe for the respondent No.2. CORAM: S.B. MHASE & SMT.NISHITA MHATRE, JJ. DATE OF RESERVING : 16TH JULY, 2008 : 2 : DATE OF PRONOUNCEMENT: 12TH MARCH, 2009 ORAL JUDGMENT. : [Per S.B. Mhase, J.] 1. This Appeal is directed against the judgment and order dated 6th May, 2008, passed by the learned single Judge of this court in Notice of Motion No. 1280 of 2008 in Suit No.1068 of 2008. The appellant is the original plaintiff while the respondents are the original defendants. Suit No.1068 of 2008 has been filed by the appellant-plaintiff under Section 6 of the Specific Relief Act, 1963 seeking a decree of restoration and mandatory direction to the defendants- respondents to hand over vacant and peaceful possession of the suit premises viz. 209, Olympus Apartments, Altamount Road, Mumbai 400026. The appellant-plaintiff has also asked for the order of injunction as prayed in clause (b) of para 24 of the Plaint. Those prayers are not reproduced here because those are not relevant at this stage. 2. After the presentation of the Plaint of the above suit, the appellant filed a Notice of Motion bearing No.1280 of 2008. The learned single Judge, by the impugned order, partly allowed the said Notice of Motion. The learned single Judge rejected prayer clauses (a) and (b) of the Notice of Motion and has allowed prayer clause (c). Thus, in short, prayer to : 3 : restore the possession of the suit premises and/or in the alternative to appoint Court Receiver in respect of the suit premises was rejected and the prayer of the appellant that the appellant be given the moveable furniture and articles taken from the suit premises be handed over to the appellant was granted. Being aggrieved and dissatisfied by the judgment and order passed by the learned single Judge in Notice of Motion No.1280 of 2008 in Suit No.1068 of 2008, the appellant-plaintiff has filed the present appeal. 3. The factual matrix and the facts revealed are as follows. The property, which is the subject matter of the suit, is flat No.209, Olympus Housing Society Limited, Altamount Road, Mumbai - 400026 admeasuring an area of about 1400 sq.ft. The appellant, as a plaintiff, has approached this court for restoration of the said flat under section 6 of the Specific Relief Act claiming that the appellant was in settled possession of the said flat and that the defendants-respondents dispossessed the appellant from the said flat between 14th March, 2008 and 18th March, 2008. 4. The appellant and the respondent No.1 were married on 1st September, 1987. Since their marriage the appellant and the respondent No.1 were residing with : 4 : the parents of the appellant till 1993. In the year 1993 the appellant and the respondent No.1 moved to reside in Hotel President and continued to stay at Hotel President till about July, 1995. The respondent No.1 was a Director of PIEM Hotels Limited. PIEM Hotels Limited purchased the suit property in the year 1996. PIEM Hotels Limited was a family business of the respondent No.1 wherein respondent No.1 was one of the Directors along with other family members. Since the respondent No.1 was a non-executive Director, the suit premises were given to respondent No.1 by PIEM Hotels Limited as a Director’s accommodation. Therefore, the appellant and the respondent No.1 started to reside in the suit premises since July, 1995. 5. On 8th August, 2005, PIEM Hotels Limited entered into an agreement of leave and licence with the respondent No.2 and though it was initially for a period upto 31st July, 2007, it was further extended between the parties. At the same time, respondent No.2 appointed respondent No.1 as an Advisor-IT with effect from 1st April, 2005 on a gross consolidated remuneration of Rs.2,50,000/- per month. The said appointment order provided that a fully furnished accommodation during the period of employment will be provided by the respondent No.2. Therefore, in view of : 5 : this appointment, the suit premises which were given to defendant No.2 by the leave and licence agreement referred to above by PIEM Hotels Limited were given to the respondent No.1 as a service occupancy accommodation and on 22nd December, 2005, the Service Occupancy Agreement was executed between the defendants No.1 and 2 and thus as a result of the employment of the respondent No.1 with respondent No.2 as stated above and as a result of the Service Occupancy Agreement, the suit premises remained in the possession of the respondent No.1. What should be noted at this stage is that the suit premises which were in possession of the respondent No.1 as a Director’s accommodation of PIEM Hotels Limited were converted into a service occupancy premises and thus from the date of the Service Occupancy Agreement the respondent No.1 was occupying the said premises as an accommodation provided to respondent No.1 by respondent No.2 in view of the employment of the respondent No.1 with respondent No.2. Therefore, the possession which was with respondent No.1 since July, 1995, though continued with respondent No.1, however, the character of the possession stood changed. (It is to be noted at this stage that the appellant pleads ignorance of the appointment of the respondent No.1 with the respondent No.2, leave and licence agreement between the respondent No.2 and PIEM Hotels Limited and the : 6 : Service Occupancy Agreement between the respondents No.1 and 2). 6. In or about May 2006, the appellant and the respondent No.1 moved to Taj Willington Mews Luxury Apartments at Colaba to facilitate extensive renovation of the suit premises. It is the contention of the appellant that the suit premises were selected as a matrimonial home for the appellant by the appellant and the respondent. However, it was purchased in the name of PIEM Hotels Limited. It was a residential flat in the Olympus Cooperative Housing Society. 7. In or about August, 2006, renovation work was completed, but by that time, the relations between the appellant and the respondent No.1 were strained and, therefore, the respondent No.1 moved to Hotel Taj President at Cuffe Parade directly from the Taj Willington Mews and the appellant came to reside in the suit premises in August, 2006 and since then the appellant was residing in the said premises. According to the appellant, on or about 2nd November, 2006, the locks of the suit premises flat were tampered and, therefore, after informing the said fact to the respondent No.1, the appellant changed the locks of the flat. It is further averred that even though the : 7 : appellant offered one set of keys to the respondent No.1, he did not accept the same. (The said flat, however, was in the possession of the appellant). This fact of change of locks is not accepted by the respondent No.1. It then appears that in January, 2008, there were complaints of the society in respect of leakage. On 9th February, 2008, some repair work was carried out and, inspite of that, the leakage continued. Thereafter, the appellant was out of the country. Therefore, Col. Yadav, General Manager (Administration) of the defendant No.2 placed a Note informing the appellant that the leakage continued. The said Note was noticed by the appellant on 26th February, 2008. On 29th February, 2008, Col. Yadav along with the appellant visited the premises in order to repair the leakage. However, it was found that major work of repair will have to be carried out. On 1st March, 2008, the appellant-plaintiff again left the country and returned on or about 8th March, 2008 and then left for Germany and Singapore on 13th March, 2008. On 14th March, 2008, the respondent No.2 terminated the Service Occupancy Agreement and asked the respondent No.1 to vacate the premises. The respondent No.1 sought some time to vacate the premises and ultimately vacated the premises on 17th March, 2008, and informed the said fact to the appellant by e-mail on or about 18th March, 2008. : 8 : On 19th March, 2008, the appellant came to India. However, the appellant found that locks to the main door of the suit premises were changed and the appellant could not enter the suit premises. The appellant was, therefore, constrained to move temporarily to Hilton Towers, Nariman Point. On 27th March, 2008, the appellant filed the suit and moved the Notice of Motion. Under these circumstances, the appellant has claimed the settled possession of the premises and, therefore, has claimed the restoration. Most of the facts in the present matter stand accepted as a result of the Affidavit-in-reply, Rejoinder and Sur-rejoinder and, therefore, after having scrutinized these documents, the above facts have been stated by us. 8. Thus, the case made out by the respondents No.1 and 2 is to the effect that it is improper to contend that the appellant was dispossessed from the suit premises. According to the respondents, the suit premises were in occupation of the respondent No.1 as an employee of the respondent No.2 and since it was found that the suit premises were not properly maintained by the respondent No.1 and the locks of the suit premises were changed by the appellant, thereby prohibiting entry of the respondent No.2, the respondent No.2 has rightly terminated the Service Occupancy Agreement and asked the : 9 : respondent No.1 to vacate the suit premises. In view of this fact, the respondent No.1, in order to protect his service and the criminal prosecution, has vacated the suit premises. 9. The learned single Judge of this court has found that this was a justifiable reason for the respondent No.1 to vacate the premises and has, therefore, accepted that it is not a case of dispossession. The learned single Judge further found that the appellant was occupying the said premises, not in her individual capacity, but she was in occupation of the suit premises as a wife of the respondent No.1. Therefore, the learned single Judge has observed that as wife of the respondent No.1, the appellant is not entitled to claim a separate and exclusive possession of the suit premises. The learned single Judge has further observed that if such a separate right is recognized in favour of the family members of the employee, the whole object of providing service accommodation to the employees in the companies will be frustrated and the companies will be unnecessarily thrown to unwarranted litigations. Thus, having found that the appellant, being a wife of the respondent No.1, cannot claim settled possession of the suit premises as against the respondents No.1 and 2, the learned single Judge has : 10 : refused an interim relief in favour of the appellant. 10. We are in agreement with the learned single Judge. Under the Companies Act, providing residential accommodations is permissible, but whenever the service occupancy is terminated, it is obligatory for the employee to vacate the said premises immediately. The respondent No.1 has acted in accordance with the same. We, therefore, do not find any fault with the behaviour of the respondent No.1. We cannot ignore the fact that the suit premises were given to the respondent No.1 as a Service Occupancy Agreement and agreement to that effect was executed. The document to that effect has been produced on record which, prima facie, shows that there was a Service Occupancy Agreement between the respondents No.1 and 2 and that the premises were given on the basis of Service Occupancy Agreement. The case, which is tried to be made out by the appellant and which is tried to be impressed upon us is that the appellant was not knowing that the respondent No.1 is employed by respondent No.2 and that the respondent No.2 has provided to the respondent No.1, the suit premises as a service accommodation. The ignorance of the appellant that PIEM Hotels Limited has given the suit premises on leave and licence basis is not acceptable to us. We cannot forget that the appellant and the respondent No.1 : 11 : are the members of a business family. The respondent No.1 was a Director of PIEM Hotels Limited. He was also a Director of MPOWER Information Systems Private Limited. Apart from that, the appellant is working as a Managing Director of the Indian Arm of a MNC Regional. She is also a Director of Asia Pacific of the MNC and in that capacity, the company has provided her accommodation in Singapore which consists of five bedrooms. The income of the appellant is approximately Rs.2 crores per annum. This is referred for the purpose of showing that the appellant is also a businesswoman and an executive holding a high-profile position. Therefore, it is very difficult to digest and hold that the transaction between PIEM Hotels Limited and the respondent No.2 and so also, the appointment of respondent No.1 by the respondent No.2 as well as the execution of the Service Occupancy Agreement between respondents No.1 and 2 was not within the knowledge of the appellant. On the contrary, we find that the ignorance which is pleaded on the part of the appellant is a fake ignorance. Thus the above facts, though within the knowledge of the appellant, appear to have been suppressed by her because if the same are disclosed they would have revealed that the respondent No.1 surrendered the possession of the suit premises in view of the termination of the Service Occupancy Agreement : 12 : and then the case under section 6 of the Specific Relief Act would not have been tenable. What we find is that this intentional suppression of facts shows that the appellant has not come before this court with clean hands to get a discretionary relief of injunction as prayed for in the Notice of Motion. Therefore, we find that the order which has been passed by the learned single Judge is a justifiable order. 11. The learned senior counsel for the appellant has consistently tried to impress upon us that the suit premises was a matrimonial home which had been selected by the appellant and thereafter, the appellant and the respondent No.1 have settled in the said premises since 1995. He further submitted that in 1996, they wanted to renovate the said premises and, therefore, the appellant and the respondent No.1 temporarily shifted from the said premises. Their relations strained thereafter, but after the premises were renovated the appellant has occupied the said premises and resided in the said premises. The emphasis of the learned senior counsel for the appellant is that since the suit premises were a matrimonial home according to the appellant, the appellant could not have been dispossessed from the suit premises even by the respondent No.1. It it to be noted in this matter that the suit premises were vacated by : 13 : the respondent No.1 and the respondent No.1 has handed over the possession of the suit premises to the respondent No.2. Therefore, so far as respondent No.2 is concerned, there is no overt act on the part of respondent No.2. Admittedly, the premises were given by the respondent No.2 to the respondent No.1 as service occupancy accommodation. Assuming for a moment that it was a matrimonial home of the appellant and the respondent No.1 since 1995, yet earlier the respondent No.1 was in possession of the said premises as a Director’s accommodation of PIEM Hotels Limited. However, as a result of the leave and licence agreement between the PIEM Hotels Limited and the respondent No.2, the respondent No.2 has become a licencee of the said premises. As a result of the employment contract between the respondents No.1 and 2, the respondent No.1 became an employee of the respondent No.2 and thus as a result of the Service Occupancy Agreement between the respondents No.1 and 2, the possession of the suit premises which was with the respondent No.1 since 1995 has changed its character. The net result on the execution of the leave and licence and the service occupancy agreement is that the respondent No.1 has ceased to hold the said premises as a Director of PIEM Hotels Limited and he occupied the said premises from the date of execution of the Service Occupancy Agreement : 14 : as an employee of the respondent No.2. 12. Be that as it may, the claim of the appellant that the suit premises being her matrimonial home she could not have been dispossessed from the suit premises is not acceptable because even PIEM Hotels Limited, which has offered the said premises as a Director’s accommodation could have asked the respondent No.1 to vacate the premises if required by the company. The respondent No.2 who is holding the said premises on leave and licence and has offered the same to respondent No.1, an employee, is also entitled to claim the said premises. Under any circumstances, the respondent No.1 was liable to vacate the said premises whenever he was asked to vacate by the agency which has offered the said premises to him. To make a particular premises or place as a matrimonial home would be a decision of the appellant and the respondent No.1 being husband and wife. However, the said decision to make a particular place a matrimonial home does not create any right as against the person who has offered the said premises to the husband and wife and, therefore, the very foundation of claiming the said premises exclusively being a matrimonial home, is not sustainable in law. 13. Even assuming that the suit premises were a : 15 : matrimonial home of the appellant and once it gets a character of matrimonial home, as observed by the learned single Judge, it is a premises wherein both the husband and wife have an access and one cannot claim the said premises as exclusive belonging or in exclusive possession of one of the party because admittedly those premises are the matrimonial home as decided by both of them viz. the husband and the wife. We thus find that the learned single Judge was right in observing that on the theory of a matrimonial home, it is not possible to hold that the suit premises were in exclusive possession of the appellant and that the appellant was in settled possession of those premises so as to attract section 6 of the Specific Relief Act. 14. The appellant has submitted before this court that since August, 1996, the appellant is in exclusive possession of the suit premises because the respondent No.1 was residing in Taj Willington. No doubt it appears that the relations between the appellant and the respondent No.1 were strained. But, however, the suit premises continued with the appellant because they were allotted to the respondent No.1 by the respondent No.2 and the Service Occupancy Agreement was in force. The respondent No.2 allowed the appellant to stay in the suit premises because the appellant was the wife of the : 16 : respondent No.1. 15. There has been a further attempt to show that in November, 2006, the locks were tampered by someone and, therefore, the appellant informed the said fact to respondent No.1 and she changed the locks. It is stated that the respondent No.1 permitted the appellant to change the locks and also asked her to file complaint with the Police. What we find is that this story is not believable. The respondent No.1 has denied the said story because the appellant only claims that the locks were changed, but as per the so called directions of the respondent No.1, the appellant did not file any Police complaint and/or if she had filed such a complaint, she would have filed a copy thereof on record. Therefore, the said story of tampering of locks in November, 2006, does not impress us at least at this stage. 16. It is admitted in the Plaint on record that since January, 2008 onwards there was a leakage problem and, in order to treat the said leakage problem, the society has made a complaint. It further appears that on 9th February, 2008, the society plumber treated the leakage. The appellant has admitted that on 26th February, 2008, she found the Note of Col. Yadav, General Manager (Administration) of the respondent No.2. : 17 : Therefore, she called Col. Yadav on 29th February, 2008, and asked him to repair the leakage problem. What is interesting to note is that if the respondent No.2 had no concern with the suit premises and if the fact that the respondent No.2 is a licencee of the said premises was not known to the appellant, then when the appellant found a Note of Col. Yadav stating himself as General Manager (Administration) of the respondent No.2, the appellant was expected to immediately question Col. Yadav as to how and in what capacity Col. Yadav had left the Note which was noticed by the appellant on 26th February, 2008. However, surprisingly, the appellant called Col. Yadav for carrying out the repairs of the suit premises. In fact, it was at that stage that objection should have been taken by the appellant with regard to the repairs being carried out by Col. Yadav. On the contrary, the appellant should have insisted upon repairs being carried out by PIEM Hotels Limited to whom the suit premises belonged. [This conduct of the appellant also shows that the appellant had full knowledge of these facts]. We, therefore, record a finding that the appellant was fully aware that respondent No.2 is a licencee of the said premises and further that the respondent No.1 was residing in the said premises as an employee of the respondent No.2. : 18 : 17. Thus, after going through the material on record on both sides, basically we find that the submission of the appellant that the appellant is in settled exclusive possession of the suit premises is not prima facie proved. Since the fact of settled possession has not been proved, we need not consider the other points viz. balance of convenience, irreparable loss etc. So far as the legal aspects are concerned, we refrain ourselves to consider the legal aspects because basically the facts which are required for this aspect being considered have not been proved. What we find is that the case laws referred before this court and the case laws which were referred before the learned single Judge of this court are one and the same on both sides. The learned single Judge has considered those cases thoroughly and applied them to the facts of the present case. We approve the exercise done by the learned