1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 737 OF 2008 GKB Optolab Pvt.Ltd .......Appellants Verus Anoop Family Trust & ors. ........Respondents Mr.Rahul Chitnis a/w.Mr.Pankaj Kode,adv. for appellants. Mr.G.S.Godbole with Mr.Bhagwat i/by. M/s.Divekar, adv.for respondents no.1, 3 and 4. Coram: Smt.R.P.SondurBaldota, J. Dated : 5 th August, 2008. P.C. : 1. Rule made returnable forthwith. By consent of parties taken up for final hearing. Heard both the advocates. 2. On the basis of “Business Alliance Agreement” the appellant seeks to contend that it is the tenant of the respondent trust in respect of the suit premises. It has filed suit under Section 33 of the Maharashtra Rent Control Act for declaration of its status as a tenant. The suit however is filed in the court of Civil Judge Senior Division, Thane. In that suit, the appellant filed an application for interim injunction inter-alia, to restrain the respondents from entering into the suit premises and or disturbing the appellants 2 possession of the suit premises in any manner. The application for interim reliefs was dismissed by the trial court by its order dated 4th July, 2008 holding that the appellant has failed to prima-facie establish that, it is the tenant in respect of the suit premises. 3. The claim of the appellant to the status of tenancy is solely dependent upon the Business Alliance Agreement, dated 27th July, 2004 with the supplementary agreement dated 30th November, 2004. Both the agreements will have to be read together. It is contended by the appellant, that the Business Alliance Agreement is a camouflage and the real intention between the parties is of creating the relationship of landlord and tenant between the two parties. If the real intention of the parties was of creating the relationship of landlord and tenant, the appellant has not spelt out any reason either in the plaint or in the appeal proceedings for executing an agreement of Business Alliance between the parties. 4. The intention of the parties will have to be gathered from terms of the two agreements. The recital 4 to the Business Agreement mentions that the parties to the agreement are desirous of entering into an Business Alliance arrangement for jointly managing and operating a store from the suit premises as per the appellants own business format, look, feel and design on the terms and conditions mentioned in the agreement. The suit premises are 3 owned by the trust and the same are equipped with all the facilities required for commercial use. After these material recitals, the agreement defines several terms used therein. The definition relevant for the present purposes is that of “business”. It is defined as setting up, maintaining, operating and servicing of a store jointly by AFT i.e. the respondent and GKB i.e. the appellant in accordance with and in compliance with the Business Format of GKB. Thereafter, are the terms agreed between the parties. It is agreed that the store from the premises would be operated by the appellant. The respondent is to provide marketing and management support for day to day conduct of the business. However, the price and variety of goods and the stocks to be displayed and sold at the store, would be decided by the appellant. The appellant has to be responsible for hiring and training of the employees to be employed at the store for operation of the store whereas the other manpower was to be maintained by the respondent. The consideration agreed between the parties is of payment of commission by the appellant to the respondent at the rate of 6% of the net sales in the store. The term regarding consideration has been slightly modified by the supplementary Business Alliance Agreement. By the modification, the payment of commission is made subject to minimum amount of Rs.1,85,000/- per month. The amount of minimum guarantee commission is to be revised after the 4 expiry of three years from the date of commencement of the agreement. The term of the business was to be of 9 years with liberty to the parties to terminate the same at the end of 3 years. Clause (e) of the agreement provides for the possession and title in respect of the suit premises. It makes clear that the premises will be continued to be in possession of the respondent. The keys of the premises shall remain with the respondent and by virtue of the agreement, the appellant shall have no right, title or interest in the premises. 5. Thus the agreements show that there is no fixed rent to be paid by the appellant to the respondent. What is to be shared is the profit at the rate of 6% of the net sales per month subject to minimum of Rs.1,85,000/-. If the agreed percentage of the net sales goes beyond the minimum of Rs.1,85,000/-, the appellant is liable to pay the same to the respondent. This prima-facie indicates sharing of profits of the business. There is also nothing to indicate that the appellant has been in exclusive possession of the suit premises which is one of the prerequisites of the right of tenancy. Further, the agreement makes it specifically clear that no right, title or interest is created in the appellants by virtue of the agreement. The trial court has considered all the above aspects to arrive at the conclusion that the appellant has failed to prima-facie establish that it is the tenant in respect of the suit 5 premises and hence has refused the relief of interim injunction. There is no reason to interfere with the decision. 6. There is another difficulty in the way of the appellants and that is the form of the suit. The appellants have filed the suit under Section 33 of The Maharashtra Rent Control Act, 1999 Section 3 of the Act exempts certain legal persons from its application. One such legal person is private limited company having a paid up share capital of Rs. One crore or more. Mr.Godbole, the learned counsel for the respondents submits that the paid up share capital of the appellants is more than three crores. This is not disputed by the appellants. In that circumstance, the appellants become exempt from the application of the Maharashtra Rent Control Act, 1999 and hence cannot resort to Section 33 of it. Another jurisdictional error is filing the suit in the Court of Civil Judge Senior Division when Section 33 requires that such a suit be filed in the court of Civil Judge Junior Division in the area in which the premises are situated. There is some confusion for the appellants as regards Section 33 of the Maharashtra Rent Control Act. If they want to resort to Section 33 of the Act, the suit ought to have been in the court of Civil Judge Junior Division. Otherwise, in view of the exemption under Section 3 of the Act, the suit ought to have been a regular civil suit filed in the court of Civil Judge Senior Division, considering the valuation of the suit. 6 7. In all the above circumstances, appeal from order is dismissed. 8. Mr.Chitnis prays that the ad-interim order passed by the trial court directing the parties to maintain status-quo, be continued for a period of 4 weeks from today. The request is granted. The ad-interim order is extended for a period of 4 weeks from today. [Smt.R.P.SondurBaldota, J]