( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3600 OF 2007 NOTICE OF MOTION NO.3600 OF 2007 NOTICE OF MOTION NO.3600 OF 2007 IN IN IN APPEAL NO.249 OF 2007 APPEAL NO.249 OF 2007 APPEAL NO.249 OF 2007 IN IN IN NOTICE OF MOTION NO.1077 OF 2006 NOTICE OF MOTION NO.1077 OF 2006 NOTICE OF MOTION NO.1077 OF 2006 IN IN IN SUIT NO.950 OF 2006 SUIT NO.950 OF 2006 SUIT NO.950 OF 2006 Bombay Cycle & Motors Agency Ltd. .. Appellants V/s Hansraj Pragji Warehousing Pvt.Ltd. .. Respondents Mr.D.H.Mehta i/by D.M.Legal Associates for the Appellants. Mr.Shekhar Shetye i/by M/s.Pandya Gandhi & Co.for the Respondents. CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. DATE : 10th March, 2008. DATE : 10th March, 2008. DATE : 10th March, 2008. P.C.: P.C.: P.C.: 1. Heard the learned Counsel for the parties. By this Notice of Motion the Appellants are seeking an injunction restraining the Respondents in any way preventing and/or obstructing the Appellants from using, occupying and enjoying the said terrace of the said building for the purpose of the business of the Appellants etc. The Appellants are also seeking an injunction restraining the Respondents from in any way interfering or obstructing or preventing the Appellants from exercising their rights in respect of the said premises as the Landlords and/or Lessors etc. 2. Today, We have admitted the Appeal. Mr.Mehta, the learned Counsel for the Appellants-Defendants has very ( 2 ) categorically pointed out that the possession of the terrace portion of the building was never ever handed over to the Respondents-Plaintiffs, which is even apparent from the Plaint itself in Paragraph No.11, which reads as under:- "11. Pursuant thereto and in execution of the said Agreement for Sale dated 9th August, 1974 the Plaintiffs in part performance of their obligations thereunder paid to the Defendants a sum of Rs.12,00,000/- as earnest money. In part performance of the said agreement for sale dated 9th August, 1974 the Plaintiffs were put in exclusive use, occupation and possession of a portion of the suit property viz.the terrace which was not handed over to the Plaintiffs under the said Indenture of sub-lease dated 29th July, 1974." 3. Mr.Shetye, the learned Counsel for the Respondents-Plaintiffs has conceded that the Respondents-Plaintiffs have paid only Rs.12 lakhs to the Appellants-Defendants and not the entire amount of consideration of Rs.22 lakhs. Mr.Shetye, the learned Counsel for the Respondents-plaintiffs is unable to show from the Plaint that after 9th August, 1974 the Respondents-Plaintiffs were actually put in physical possession of the said terrace. On the contrary, in the letter dated 9th March, 1981 (being Exhibit 1 annexed to this Notice of Motion) the Respondents-Plaintiffs have made it clear in no uncertain terms that the Appellants-Defendants were the sole beneficiaries of the entire terrace and as such the repairs to the ramp should be carried out by the Appellants-Defendants on account of the exclusive use of the said ramp and the ( 3 ) terrace by the Appellants-Defendants. From the said letter dated 9th March, 1981 it is very much clear that the Respondents-plaintiffs have no right to use the said terrace. 4. Mr.Mehta, the learned Counsel for the Appellants-Defendants has brought to our notice clause 5(a) of the Lease Deed dated 29th July, 1974, which reads as under:- "5 (a) - Notwithstanding anything herein contained in clause 1 hereof, the Lessors shall have the exclusive use of the open terrace for the purpose of keeping and parking their cars and vehicles, for carrying out pre-delivery, inspection, maintenance and repair if necessary under temporary cover, and for that purpose shall be entitled to the exclusive use of the vehicle access leading to and from the ground floor through the first floor from and to the terrace and without in any manner obstructing or hindering the lessees and to the use of the entrances and passages leading through and from the demised premises in common with the Lessees, their agents, servants, and employees for the purpose of ingress to or egress from the terrace and the demised premises and for all purposes incidential to the use and occupation of the open terrace by the Lessors as hereinabove stated without any payment and/or deduction in rent and charges payable by the Lessees hereinbefore provided for and during the period of the sub-lease" 5. Mr.Mehta, the learned Counsel for the Appellants-Defendants also brought to our notice clause 7 of the Agreement for Sale dated 9th August, 1974 from which it is clear that the said arrangement was to continue till the completion of the sale, which admittedly has not been taken place till date. ( 4 ) 6. Under the aforesaid facts and circumstances, and in view of the fact that today we have admitted the Appeal, there shall be ad-interim relief in terms of prayer clauses (b) & (c) of the Notice of Motion No.3600 of 2007. Notice of Motion No.3600 of 2007 is made returnable after four weeks. 7. The learned Counsel for the Respondents-Plaintiffs seeks stay of the above aforesaid order. Especially in view of the aforesaid letter dated 9th March, 1981 which was willfully suppressed by the Respondents while filing the above suit, we are not inclined to grant a stay of our order. Stay is rejected. (ANOOP V.MOHTA, J.) (ANOOP V.MOHTA, J.) (ANOOP V.MOHTA, J.) (DR.S.RADHAKRISHNAN, J.) (DR.S.RADHAKRISHNAN, J.) (DR.S.RADHAKRISHNAN, J.)