1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.839 of 2010 IN Suit No.2135 of 2001 Mr.Sandeep G. Raheja .. .. Plaintiff v/s. Mr.Chandru L. Raheja & ors. .. Defendants A n d 1.Ferani Hotels Pvt. Ltd. 2.M/s.K.Raheja Development Corporation .. Respondents Dr.Veerendra Tulzapurkar, Senior Advocate with Ms.Hemlata Jain, Mr.Kunal Vajani and Mr.Pervez Bapuna i/by M/s.Wadia Ghandy & Co. for Deft.No.1. Mr.F.E. D Vitre, Senior Advocate with Ms.Hemlata Jain, Mr.Zal Andhyarujina and Ms.Kirtida Chandarana i/by M/s.Humranwala & Co. for Deft.No.5. Mr.E.P.Bharucha, Senior Advocate with Mr.Aspi Chonoy, Sr.Advocate and Mr.Zubin Behramkamdin i/by Vijay Kakwani for Res.No.1. Ms.Kanchan Pamnani i/by S.J. Pamnani for Deft.Nos.3 & 4. Mr.Nimay Dave i/by Ms.Sangeeta Lajewar for Deft.No.6. Ms.Punita Soni i/by Bilawala & Co. for Deft.No.7. Mr.Shrivardhan Deshpande i/by Negandhi, Shah & Himayatulla for Deft.No.8 (IL & FS). Mr.Aditya Parab i/by Thakore Jariwala & Associates for Deft.No.2. ------- 2 CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 23rd April, 2010 Date of pronouncing the order : 28th April, 2010 P.C. : 1.This Notice of Motion is taken out by Defendant No.5, who is one of the beneficiaries of one Raj Trust, for which the Suit is filed, for an order and direction to the Administrator of the Trust appointed under an earlier order of this Court in the interim proceedings taken out in the Suit to initiate appropriate legal proceedings for securing the rights and interest of the Trust and its beneficiaries in respect of the premises shown in the second schedule to a sub-lease agreement entered into by Respondent No.2 with the said Trust and in the alternative for leave to initiate action himself. 2.In the initial Notice of Motion taken out in the Suit an administrator came to be appointed by the order of this Court dated 16 th November 2006 by consent of the parties for protection of the assets of the Trust. The administrator was a retired Judge of this Court. The administrator was inter alia to take steps for realisation of the stock-in-trade of the unsold plots and assets owned by the Trust and for protection of the assets of the Trust. The administrator had inter alia 3 to recover receivables, discharge liabilities, execute sale-deeds, take follow-up action and the like. 3.The premises required to be protected by Defendant No. 5, who has taken out this Notice of Motion, is owned by Respondent No.1 and leased to Respondent No.2 on 1.4.1992. The lease is in respect of an office building No.28 at Race Course Road, Coimbatore. Two days after the execution of the lease, Respondent No.2 has entered into a sub-lease with Raj Trust represented by its authorised signatory. The sub-lease is in respect of two rooms and a portion of the common hall with furniture and fixtures on the North side of building No.28 at Race Course Road, Coimbatore. Respondent No.2, who was in possession of the entire premises leased to it, agreed to sub-lease the aforesaid two rooms and the common use of the hall to Raj Trust on consideration of Rs.1,000/- per month. The sub-lease was to remain in force for the period of the lease (it cannot extend beyond such period). The sub-lessee being the Trust agreed to vacate the premises on the expiry or termination of the lease of Respondent No.2. 4.The lease has been sought to be terminated by the termination Notice dated 25 th June 2003 issued by Respondent No.1 upon Respondent No.2. The lease is 4 shown to be subsisting on the date of the termination notice. The lease has been terminated as Respondent No.1 were to erect a new building on the site of the demised premises. Vacant possession was, therefore, called for. 5.It appears that there is a dispute with regard to the payment of rent prior to and after the termination notice. Rent, which was sought to be tendered by the lessee, has not been accepted by the lessor. This application is not concerned with the dispute, if any, with regard to the payment or acceptance of lease rent. 6. It is the contention of Respondent No.1 that it was earlier in joint occupation, possession and use of the property so demised as its hotel business and in exclusive occupation, possession and use from March 2009. Respondent No.1 claims that Respondent No.2 as well as Raj Trust removed the staff and belongings and vacated and abandoned the lease premises by February 2009. It claims that Respondent No.2 as the lessee and Raj Trust as the sub-lessee extinguished and surrendered their rights in respect of the premises leased or sub-leased to it. Suffice it to say that there are disputes between the lessor and the lessee with regard to the termination of the lease. The continuance of the sub-lease would depend upon the 5 termination. 7.I have been shown two orders passed in an arbitration proceeding between various Companies and some of the trustees and beneficiaries of Raj Trust. In the order dated 17.1.2002, a list of office and infrastructure at Bangalore and Coimbatore stated to be of various construction Companies (entities) and inter alia Raj Trust belonging to the parties to the arbitration was set out. It is set out in paragraph 5 of the order that those entities (including Raj Trust) were not claiming any independent right in the various properties at Bangalore and Coimbatore shown in the said lease against the owners of those properties. It is contended on behalf of Respondent No.1 that the Trust implicitly gave up its right to the sub-tenancies in favour of the owners and it is contended on behalf of Defendant No.5, who is one of the beneficiaries of the Trust, that not being a party thereto, it did not. 8.In a later order dated 17 th September 2007,in the same arbitration, an application was sought to be made by one of the groups for directions to hand over the property in which the leased premises is situate to Respondent No.1, which application came to be allowed to be withdrawn. Defendant No.5 seeks to contend that this itself shows that there was a dispute with regard 6 to the sub-leased premises claimed by the Trust. 9.In a still further order dated 15.10.2009 in the same arbitration the dispute with regard to the property leased by Respondent No.1 to Respondent No.2 and the possession claimed by Respondent No.1, has been set out. 10.Disputes with regard to Trust properties are required to be adjudicated, the appointment of the administrator notwithstanding. It appears that the learned Administrator has found the cost-benefit ratio to be rather adverse for prosecuting a litigation in respect of one of the many properties of the Trust which is only two rooms and the common use of a hall. Defendant No.5 has sought to agitate his rights in Court of law with regard to the sub-lease in his favour at his own cost. The contention of the Plaintiff that once an Administrator is appointed, the parties cannot function as trustees, would hold good only so far as the day to day administration of the Trust is concerned. No party can be prevented from maintaining an action in law in respect of any property, movable or immovable, claimed by him / her. 11.Consequently, the application is required to be granted in terms of prayer (b). Defendant No.5 is 7 allowed to initiate an action in law in respect of the premises sub-leased to Raj Trust at his own cost. 12. Prayer (a) is refused. Prayer (c) is not pressed. 13.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)