- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 8 OF 2009 IN APPEAL No. 579 OF 2003 IN T.E. & R. SUIT No. 117/147 OF 2000 Central Cottage Industries Corporation ... Petitioners of India Ltd. ( Orig. Defendants) Vs. M/s. United Corporation ... Respondent (Original plaintiffs) Mr. V. A. Thorat, Sr. counsel with Mr. R. A. Thorat & Smt. Shahnaz Baig, for the petitioners. Mr. Nafade, Senior counsel with Mr. Vineet Naik i/b Jhangiani Narula and Association, for the respondent. CORAM : R. V. MORE, J. DATED : APRIL 22nd , 2009. PC. 1. Heard the learned senior counsel for the respective parties. 2. The revision takes exception to the judgment and decree dated 26th November 2008 passed by the Division Bench of the Small Causes Court in Appeal No. 579 of 2003, whereby the petitioner’s appeal was dismissed, consequently, the trial Court’s decree of eviction came to be confirmed. The dispute is about the premises i. e. Ground, basement - 2 - and meznnaine floors, admeasuring in aggregate 13,750 Sq. ft. in a building “Narang House” situate at Chhatrapati Shivaji Maharaj Appolo Bundar, Mumbai (hereinafter, for the sake of brevity, to be referred as the “suit premises”). The respondent is a partnership firm, registered under the Indian Partnership Act and is a tenant in respect of the suit premises. The petitioner is a company incorporated on 5th February 1976, under the Indian Companies Act, 1956, having paid up share capital of Rs. 10,85,00,000/-. The respondent by an agreement dated 27th January 1970 had granted leave and license in respect of the suit premises to Central Cottage Industries Association, a society registered under the Society Registration Act, 1860. The said Society was dissolved and ceased to exist on or about March 1976 and the petitioner was inducted as a tenant of the suit premises. 3. The respondent filed L.E. Suit 123/151 of 1988 against the petitioner in the year 1988 for the recovery of possession of the suit premises as well as for recovery of payment of arrears of commission and mesne profits. The petitioner in the said suit had filed written- statement and pleaded protection under the provisions of Bombay Rent Act, 1947. Said suit is pending in the Small Causes Court. 4. With effect from 31st March 2000, the Bombay Rent Act 1947 came to be repealed and the Maharashtra Rent Control Act, 1999 has come into force. As petitioner is a public limited company, having paid up share capital of Rs.10,85,00,000/-, the protection is not available under the Maharashtra Rent Control Act, 1999, in view of provisions of Section 3(1)(b) of the said Act. The respondents therefore, without - 3 - prejudice to their rights and contentions in earlier suit namely L.E. Suit 123/151 of 1988 proceeded on the basis that the petitioner is a tenant in respect of the suit premises, as contended by the petitioners themselves in their written statement in L.E. Suit 123/151 of 1988. The respondent accordingly by notice dated 11th July, 2000, under Section 106 of Transfer of Property, pointed out to the petitioner that the Bombay Rent Act, 1947 had been repealed and Maharashtra Rent Control Act, 1999 is not applicable to the suit premises, and terminated the petitioner’s monthly tenancy in respect of the suit premises and called upon them to hand over vacant possession of the same; and thereafter filed the present suit being T.E. & R. Suit No. 117/147 of 2000. 5. The learned Single Judge of the Small Causes Court by his judgment and decree dated 13th June 2003, decreed the suit and the petitioners were directed to deliver vacant possession of the suit premises to the respondent. The petitioners were further directed to pay arrears of rent at the rate of Rs.4,20,000/- per year upto 14th August 2000. The petitioners were further directed to pay mesne profits to the respondent from 15th August 2000 till filing of the suit, as arrears of mesne profits and also directed the petitioners to pay future mesne profits from 30th August 2000 till respondent receives possession of the suit premises. 6. The petitioner challenged the above decree of the learned Single Judge of the Small Causes Court before the Division Bench by filing Appeal No. 579 of 2003. The Division Bench of Small Causes Court, as stated above, dismissed th appeal, and therefore, petitioners filed the - 4 - present revision, under Section 115 of the Code of Civil Procedure. 7. Mr. Thorat, learned senior counsel for the petitioner submitted that there is no relationship of landlord and tenant between petitioner and the respondent, for want of privity of contract between them. He further submitted that in the absence of said relationship, the suit under Section 41 of the Presidency Small Causes Courts At, was not maintainable. In the alternative it is submitted that the transaction was purely of commercial nature. He lastly submitted that the suit filed by respondent for eviction of the petitioner is premature. In order to substantiate his contention, learned counsel pointed out that the pleadings of the respondent in the earlier suit namely L.E. Suit 123/151 of 1988, claiming the petitioner to be mere licensee, and not entitle for protection, under Section 15-A of the Bomaby Rent Act, 1947. He also pointed out the contents of notice under Section 106 of the Transfer of Property Act, under which it is alleged that respondents have not accepted the petitioner as a tenant. He also pointed out the averments in the present suit in which it is contended by the respondent that present suit is filed without prejudice to their rights and contentions raised in the earlier suit being L.E. Suit 123/151 of 1988. He also invited my attention to the evidence of the respondent wherein it is alleged to have admitted by the respondent that there is no agreement between respondent and the petitioner. 8. Mr. Naphade, learned senior counsel appearing for the respondent, per contra, supported the impugned judgment and decree. He relied upon the petitioner’s admission in paragraph 8 of the written- - 5 - statement in the present suit to the effect that the transaction between petitioner and the respondent was that of landlord and tenant. He further relied on admission in paragraph 9 of the written-statement in the present suit to the effect that Central Cottage Industries Association was merely converted into petitioner company. He submitted that in paragraph 3 of the plaint in the present suit, the respondent accepted the petitioner as tenant of the suit premises. He invited my attention to the written statement of the petitioner in earlier suit being L.E. Suit 123/151 of 1988 in which it was stand of the petitioner that they are tenant of the suit premises. He relied upon the documents at page 262 to 264 and 274 to 276 in compilation i.e. receipts of rent of the suit premises. Regarding petitioner’s objection regarding the validity of the termination of notice and maintainability of the suit, the learned counsel for the respondent submitted that in view of amendment to Section 106 of the Transfer of Property Act, this ground is not is available to the petitioner. He also submitted that this point was not argued by the petitioner before the lower Courts. 9. Having heard the learned senior counsel for the parties, and having gone through memo of the revision along with annexures thereto and the documents in separate compilation, I am of the considered view that there is no merit in the revision application. There is no dispute that the petitioner is a company, registered under the Indian Companies Act, having paid up share capital of Rs.10,85,00,000/-. It was also not seriously disputed that protection under the Maharashtra Rent Control Act, 1999 is not available to the petitioner in view of Section 3(1)(b) of the - 6 - said Act. The objection to the decree of eviction is taken mainly on the ground of maintainability of the suit under Section 41 of the Presidency Small Causes Courts Act. This objection was taken on the premises that there is no landlord-tenant relationship between petitioner and the respondent. In the alternatively it is contended that transaction was of purely commercial nature. 10. There is no dispute that agreement for leave and license was executed between respondent and Central Cottage Industries Association on 27th January 1970. The petitioner specifically admitted in paragraph 9 of their written-statement in the present suit that the said Association was converted into petitioner company. The petitioner in paragraph 8 of their written statement in the present suit also asserted that the transaction between petitioner and respondent was that of landlord and tenant. In a written-statement filed in the earlier suit being L.E. Suit 123/151 of 1988 in paragraph 6, the petitioner has averred as under- “The Defendants submit that accordingly they have continued in exclusive possession and occupation of the said premises as the sub-lessees/ licensees of the Plaintiffs. The defendants submit that even considering their status as that of Licensees, the said Agreement dated 27.01.1970 was in force and subsisting on 01.02.1973 and the Defendants therefore, became the Deemed Tenants of the Plaintiffs in respect of the said ground floor premises.” This averment unequivocally reveals that petitioners claimed to be the - 7 - deemed tenant with effect from 1st October 173. Even in paragraph 1 of the said written-statement, the petitioners have clearly claimed that they are tenant/deemed tenant of the respondent in respect of the suit premises. The respondent in paragraph 4 of the plaint in the present suit asserted that the Central Cottage Industries Association was dissolved and the petitioner was inducted by the said Association as tenant and put into possession of the suit premises and there is no change of identity. 11. In view of assertion of the petitioner that the said Central Cottage Industries Association was converted into petitioner-company. I find no merits in the submission of learned counsel for the petitioner that there is no privity of contract between respondent and petitioner, in as much as as, admittedly there was an agreement of leave and license between respondent and predecessor in title of the petitioner. I also do not find any merit in the submission that there is no relationship of landlord and tenant between respondent and the petitioner, as the said relationship is admitted by the petitioner in the written-statement filed in the earlier suit as well as written-statement filed in the present suit. 12. The petitioner’s submission that the nature of transaction is commercial, is also devoid of any substance, in view of the documents filed in separate compilation at page 274 to 280. The document at page 274 is covering letter by the petitioner to the respondent along with a cheque for an amount of Rs.3,36,000/- towards rent for a period between 24th September 1998 to 23rd September 1999; document at page 275 is Form No. 16-A i.e. certificate of deduction of tax at source under section - 8 - 203 of the Income-Tax Act, 1961, wherein nature of the above payment shown as rent; the document at page 276 is covering letter by the petitioner to the respondent along with cheque for an amount of Rs. 3,27,600/- towards rent of the suit premises from 24th September 1999 to 23rd September 2000; the document at page 277 is again a Form No. 16-A in which nature of payment was shown as rent; document at page 278 is again a covering letter along with cheque for an amount of Rs.3,27,600/- towards rent of the suit premises for the period between 24th September 2000 to 23rd September 2001; document at page 279 is again Form No. 16-A, showing nature of above payment as a rent; document at page 280 is a copy of covering letter along with cheque for an amount of Rs. 3,34,320/- towards rent of suit premises for a period between 24th September 2001 to 23rd September 2002. These documents clearly goes to show that the petitioner from time to time had deposited with the respondent an amount of rent and therefore, I do not find any substance in the contention of the petitioner that nature of transaction was non- commercial and not commercial. 13. The last submission of the learned counsel for the petitioner that the notice was issued on 11th July 2007 and tenancy was terminated by the end of August 2000 i.e. by 31st August 2000, however, suit was filed on 31st August 2000 and therefore, the same is premature, is devoid of any substance, for the reason that- firstly this point was not argued by the petitioner in the lower Court. Finding to that effect is recorded by the trial Court in paragraph 61 of the Judgment; and secondly the suit cannot be invalidated on this ground in the absence of - 9 - any statutory provision to that effect. Even otherwise also, in view of amendment to section 106 of Transfer of Property Act, termination notice cannot be said to be invalid. 14. Taking over all view of the matter, I find that the lower Courts have correctly arrived at conclusion. I do not find any error in impugned decree of eviction, so as to enable me to interfere in my jurisdiction under section 115 of the Code of Civil Procedure. Revision is accordingly dismissed. 15. Mr. Thorat, learned counsel for the petitioner, at this stage, seeks four months time to vacate the suit premises. Mr. Nafade, learned counsel for the respondent has no objection if reasonable time to vacate the suit premises is granted to the petitioner. 16. Taking into consideration the submissions and in the interest of justice three months time is granted to the petitioners to vacate the suit premises, subject to filing usual undertaking within a period of six weeks from today in the trial Court. Sd/- [ R. V. MORE, J.]