: 1 : chs-594-08-Judgment.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 594 OF 2008 IN EXECUTION APPLICATION NO. 223 OF 2007 IN SUIT NO. 938 OF 2000 Aruna Narendra Goradia of Bombay Indian Inhabitant having her address at Sunama House, 1st Floor, Cumballa Hill, Mumbai – 400 026 .. Plaintiff v/s. Jabeen Travels Club Pvt. Ltd. A company Incorporated under the Companies Act I of 1956 and having its registered office at K-43, Maker Towers, Cuffe Parade, Mumbai – 400 005. .. Defendants And City Limouziens (India) Ltd. A Company Incorporated under the Companies Act, 1956 having its address at 102, B-wing, 10th floor, Mittal Tower, Nariman Point, Mumbai – 400 021. .. obstructionists ......... Mr. Shailesh Shah with Pankaj S. Shah for the plaintiff None for the defendants None for obstructionists ......... CORAM : R.Y.GANOO, J. DATE : 31st JANUARY, 2011 ORAL JUDGMENT : 1. This chamber summons has been taken out by the plaintiff for : 2 : chs-594-08-Judgment.doc getting back the possession of the office premises namely 102-B admeasuring 739 sq.ft. situate on 10th floor in the building known as “Mittal Towers”, B-wing, situate at 210, Nariman Point, Mumbai – 400 029 (hereinafter referred to as the said suit premises) from the obstructionists. By prayer clause (b) the plaintiff has prayed that the obstructionists should not part with possession and / or create third party rights in respect of the suit premises. By prayer clause (c) mesne profit are sought against obstructionists. By prayer clause (d) compensation is sought from defendants which according to plaintiff was payable by the defendants in terms of consent terms dated 14th March, 2000. 2. This chamber summons is taken out by the plaintiff in accordance with the provisions of Order XXI Rule 97 of CPC for the eviction of the obstructionists. The circumstances under which this chamber summons has been taken out are as follows. 3. The plaintiff herein instituted the suit against the defendants for recovery of possession of the suit premises. In the said suit, plaintiff and defendants arrived at certain terms. Said consent terms were filed on 14th March, 2000 and immediately decree came to be passed on 14th March, 2000 itself. A perusal of the consent terms goes to show that : 3 : chs-594-08-Judgment.doc defendants agreed to handover vacant and peaceful possession of the suit premises to the plaintiff. An arrangement was arrived at between the plaintiff and the defendants and defendants were permitted to occupy suit premises till 2003 on terms set out in consent terms and decree dated 14th March, 2000. The said consent terms provided that defendants should pay compensation at Rs.30,000/- per month from 1st March, 2000 for remaining on the suit premises till 28th February, 2003. A sum of Rs.3,60,000/- was also to be received by the plaintiffs as security deposit. In substance, arrangement was arrived at between plaintiff and defendants to see that defendants could occupy the suit premises under the decree till 28th February, 2003 and in order to see that the defendants do not remain in suit premises free of cost Rs. 30,000/- per month was fixed as and by way of compensation. In the consent terms, in clause 5, it was also agreed that in order to incorporate the terms on which the defendants would occupy the premises under the decree, an agreement would be entered into by and between plaintiff and the defendants. The plaintiff and defendants accordingly entered into an agreement dated 15th March, 2000. This agreement was titled as Leave and Licence agreement. It is the case of the plaintiff that the defendants continued to occupy the suit premises till 28th February, 2003. According to plaintiff as per the consent decree dated 14th March, 2000 defendants were required to hand over vacant : 4 : chs-594-08-Judgment.doc and peaceful possession to the plaintiff on or before 28th February, 2003. According to plaintiff defendants did not deliver the vacant and peaceful possession on or before 28th February, 2003. Plaintiff claims that she was entitled to have possession pursuant to the decree dated 14th March, 2000 which enabled defendants to remain in possession of the suit premises till 28th February, 2003. Defendants did not vacate the suit premises and handover the same to the plaintiff. 4. In the circumstances mentioned aforesaid plaintiff filed Execution Application No. 223 of 2007. As the said execution application was filed after a period of 2 years from the date when decree dated 14th March, 2000 was passed, the notice under Order XXI Rule 22 of the CPC was issued and it was made absolute by the Court on 7th January, 2008. 5. On account of the aforesaid developments, the plaintiff claimed that she was entitled to take vacant and peaceful possession of the suit premises from the defendants in execution. Consequently, plaintiff applied for warrant of attachment under Order XXI Rule 54 of CPC. That attachment was levied on 17th March, 2008. Thereafter, steps were taken to have warrant of possession of the suit premises under Order XXI Rule 35 / 36 of CPC. That warrant of possession was ordered by the Court and accordingly, bailiff was taken to the suit premises for the : 5 : chs-594-08-Judgment.doc purposes of executing the said decree and getting the vacant and peaceful possession from the defendants. 6. The bailiff approached the suit premises on 27th March, 2008 to execute the decree. On 27th Mach, 2008 the said decree came to be obstructed by M/s. City Limouziens India Ltd. and accordingly possession of the suit premises could not be taken by the plaintiff. Consequently, plaintiff was required to take out this chamber summons as per Order XXI Rule 97 of CPC. A copy of this chamber summons was duly served upon the obstructionists and the obstructionists filed their affidavit-in-reply dated 11th June, 2008 opposing the chamber summons. To the said affidavit-in-reply, a rejoinder came to be filed by the plaintiff being rejoinder dated 17th July, 2008. Thereafter, issues came to be framed in the chamber summons on 29th June, 2010. The said issues as as follows. “(i) Is the plaintiff entitled to execute a decree and obtain vacant and peaceful possession of the suit premises viz. Office premises bearing No.102/B, on the 10th floor in the building known as Mittal Tower in B-wing, situate at 210, Nariman Point, Mumbai – 400 021 and that the obstructionist is liable to vacate and hand over to the plaintiff the vacant and peaceful possession of the suit premises ? : 6 : chs-594-08-Judgment.doc (ii) Is the obstructionist liable to pay mesne profit at the rate of Rs.3,50,000/- p.m. as alleged in para 20 in the affidavit in support ? (iii) Whether the defendant is liable to pay arrears of compensation as set out in particulars annexed to the Chamber Summons and as alleged in para-21 in the affidavit in support ? (iv) What order ?” 7. By the said order dated 29th June 2010, recording of evidence was ordered. Thereafter, the matter came up again on 7th September, 2010. On that day, it was noticed that the issues will have to be recast. Keeping in view the text of the affidavit-in-reply filed by the obstructionists, this chamber summons was adjourned to 21st September 2010. Thereafter, on 6th October, 2010 issues were recast. It is to be noted that the obstructionists remained absent on 6th October, 2010. Accordingly on 6th October 2010 following issues were framed on account of recasting of the issues. “(i) Do the obstructionist prove that the obstructionist is a tenant in respect of the suit premises viz. Office premises bearing No.102/B, on 10th floor in the building known as Mittal Tower in B-wing, situate at 210, Nariman Point, Mumbai- 21 as alleged in paragraph 4 of the affidavit in reply by the : 7 : chs-594-08-Judgment.doc obstructionist ? (ii) What order ?” 8. Looking to the issues framed, it was noticed that burden was on the obstructionists to prove that they had rights to occupy the suit premises independent of the defendants against whom the decree is passed. Accordingly, obstructionists were directed to file evidence affidavit in support of their claim. Time was granted. Thereafter, matter was adjourned from time to time to enable the obstructionists to file evidence affidavit. As no steps were taken by the obstructionists to file evidence affidavit, the matter was taken up on 7th December, 2010 and the case of the obstructionists came to be closed as no evidence came to be filed. Learned advocate Mr. Shah appearing on behalf of the plaintiff had stated that plaintiff was not inclined to lead any evidence and he closed his case. Thereafter, the arguments of learned Counsel Mr. Shailesh Shah on behalf of the plaintiff were heard in support of the chamber summons. Nobody appeared on behalf of the obstructionists and the matter was adjourned to 11th January, 2011 for orders. On 11th January, 2011 I had sought some clarification from leanred Counsel for the plaintiff. Thereafter, the arguments on behalf of the plaintiff came to be over on 25th January, 2011 and the matter was adjourned today for passing final order. : 8 : chs-594-08-Judgment.doc 9. Learned Counsel Mr. Shah appearing on behalf of the plaintiff submitted that the obstructionists have failed to remain present before the Court after they filed their affidavit-in-reply. He also pointed out that obstructionists have remained absent even at the stage of recording of evidence and at the stage of arguments. 10. Learned Counsel Mr. Shah appearing on behalf of the plaintiff took me through the entire record and pointed out the various developments which had taken place in the matter right from the passing of consent decree dated 14th March, 2010 upto carrying out the warrant of possession of the suit premises for taking possession. 11. I have ascertained on the basis of record the various developments and the record clearly goes to show that decree came to be passed against the defendants on 14th March, 2000. They were permitted to occupy the suit premises under the decree till 28th February, 2003 on payment of charges as agreed to between the plaintiff and the defendants pursuant to Agreement dated 15.03.2000. The warrant of attachment was levied upon the property after the defendants failed to comply with the consent decree. The warrant of possession came to be obstructed by the obstructionists and that is : 9 : chs-594-08-Judgment.doc how the decree came to be objected. 12. Learned Counsel Mr. Shah submitted that on account of the obstruction put up by the obstructionists, it became necessary for the plaintiff to take out the present chamber summons as per the provisions of Order XXI Rule 97 of CPC. It will well settled that this proceeding is to tried as a suit and in such proceedings, the burden is on the obstructionists to show that obstructionists has a right independent of the defendants and the said decree passed against the defendants is not binding upon him. Learned Counsel Mr. Shah took me through the affidavit-in-reply filed by the obstructionists and contended that it has been the case of the obstructionists that an independent agreement was entered into between the plaintiff and the obstructionists and that is how the obstructionists has right in respect of the suit property. Learned Counsel Mr. Shah submitted that issue which came to be recast on 6th October, 2010 clearly put burden on obstructionists. Learned Counsel Mr. Shah pointed out that no evidence came to be led by the obstructionists even though sufficient time was given. Learned Counsel Mr. Shah therefore submitted that obstructionists failed to discharge burden cast on the obstructionists in terms of issue no.1. He therefore, submitted that issue no.1 ought to be answered in the negative in as much as the obstructionists has : 10 : chs-594-08-Judgment.doc failed to show that the obstructionists had the rights in respect of the suit premises as that of the plaintiff. 13. Learned Counsel Mr. Shah had submitted that the original defendants were granted time by the plaintiff out of indulgence and such time was granted pursuant to consent decree read with Agreement dated 15th March, 2000 entered into between the plaintiff and the defendants. Learned Counsel Mr. Shah therefore submitted that it was mandatory for the defendants to vacate the suit premises and as the defendants did not evict, the plaintiff could execute the decree and in execution the obstructionists opposed the decree. He pointed out that failure on the part of the obstructionists to discharge the burden should result in rejection of claim of obstructionists. Learned Counsel Mr. Shah therefore submitted that the chamber summons should be made absolute by the Court and an order of possession should be granted as against the obstructionists so that the said order can be put into action and possession can be recovered from the obstructionists. 14. Learned Counsel Mr. Shah took me through the other prayers of the chamber summons and submitted that once the Court comes to the conclusion that the obstructionists had no right to occupy the premises, : 11 : chs-594-08-Judgment.doc the said order shall relate back to the day on which the decree was resisted by the obstructionists. He, therefore, submitted that from the said day i.e. 27th March, 2008, the obstructionists would be liable to pay mense profit up to the day when the plaintiff would be able to get possession of the suit premises from the obstructionists as specified in prayer clause (c) of the chamber summons. Learned Counsel Mr. Shah therefore submitted that Court should pass orders in favour of the plaintiff in terms of the chamber summons. 15. Learned Counsel Mr. Shah in so far as prayer clause (b) of the chamber summons is concerned submitted that if this Court passes order in terms of prayer clause (a), an order is required to be passed in terms of prayer clause (b) to protect the interest of the plaintiff. He submitted that if an order in terms of prayer clause (b) is not passed, there is every likelihood that the obstructionists would create third party rights and / or part with possession in regard to the suit premises and if that is done, that it would frustrate the purpose of this chamber summons. 16. Learned Counsel Mr. Shah submitted that the original defendants were liable to pay amount of Rs.30,000/- per month till such time they were to occupy the premises under the decree i.e. till 28th February, : 12 : chs-594-08-Judgment.doc 2003. Learned Counsel Mr. Shah submitted that the defendants have not complied with that clause of the agreement dated 15th March, 2000 and, therefore, the plaintiff is entitled to recover said unpaid amount along with interest as set out in the agreement dated 15th March 2000. He submitted that Court should pass appropriate orders to direct defendants to pay to plaintiff unpaid amount as per agreement dated 15th March 2000. Mr. Shah, therefore, submitted that appropriate orders be passed keeping in view various submissions made by him. 17. Defendants and obstructionists have remained absent. I have perused the entire record. Looking to the consent decree dated 14th March, 2000 coupled with the agreement executed by and between the plaintiff and the defendants dated 15th March 2000, defendants were permitted to occupy the suit premises till 28th November, 2003 under the decree dated 14th March, 2000. On account of that it was obligatory upon the defendants to handover the suit premises to the plaintiff on or before 28th February, 2003. It is noticed that in the agreement dated 15th March 2000, defendants had agreed that till they handover possession to the plaintiff, pursuant to the consent terms, they would not create third party rights and / or part with possession. The very fact that the obstructionists have entered into possession of the property, it is clear that defendants have violated the terms of the said agreement : 13 : chs-594-08-Judgment.doc as well as consent decree. Since decree became executable after 28th February, 2003, plaintiff was right in filing execution application which was permitted to be done by grant of order under Order XXI Rule 22 of CPC. The warrant of possession came to be obstructed by the obstructionists as mentioned earlier on 27th March, 2008. 18. Since the obstructionists obstructed execution of the decree, it was incumbent upon the obstructionists to show that they had rights in regard to the suit premises as against the plaintiff independent of the defendants. The plaintiff took out this chamber summons under Order XXI Rule 97 of the CPC. Obstructionists did file affidavit-in-reply and tried to put up their claim over the suit premises by contending that they had entered into independent agreement with the plaintiff thereby enabling them to be in possession in the suit premises.. If this was the stand of the obstructionists, it was necessary for them to step into witness box and lead evidence particularly when the plaintiff had refuted the said contention by way of filing affidavit-in-rejoinder. 19. The issues framed on 6th October, 2010 clearly indicated that the burden was on the obstructionists to prove their claim as regards their title to the property and their rights under which they were occupying the suit premises. Despite giving sufficient opportunity to the : 14 : chs-594-08-Judgment.doc obstructionists to place evidence on record in support of their claim, obstructionists did not avail of said opportunity. They remained absent. Consequently, obstructionists could not discharge burden cast on them. 20. Having considered the facts and developments as aforesaid, I am inclined to observe that in the absence of evidence from the obstructionists, they have failed to prove that they had right independent to the defendants as against the plaintiff and as such the obstructionists have no right to occupy the suit premises and that their obstruction cannot be treated as justified. Consequently, plaintiff would be entitled to have possession of the suit premises from the obstructionists. In view of this, issue no.1 is answered in the negative. In view of answer to issue no.1 in the negative, the chamber summons will have to be allowed so far as prayer clause (a) is concerned thereby enabling the plaintiff to get back the possession of the suit premises from the obstructionists. 21. So far as prayer clause (b) is concerned, I am inclined to accept the submission advanced by learned Counsel for the plaintiff that as of today the obstructionists are occupying the premises by virtue of the obstruction put up by them and on account of pending obstruction : 15 : chs-594-08-Judgment.doc proceedings. Having observed that the obstructionists will have to vacate the suit premises, there is every possibility that on knowing this order, obstructionists may create third party rights and / or part with with possession in regard to the suit premises to the third person thereby defeating the claim of the plaintiff to get back the possession. In the circumstances, mentioned aforesaid, I am inclined to pass an order in terms of prayer clause (b) to the chamber summons. 22. Prayer clause (c) speaks of mesne profit to be recovered from the obstructionists. Now that I have observed that the obstructionists will have to be evicted. Till such time possession is regained by the plaintiff, the plaintiff would be entitled to claim mesne profit for the illegal occupation by the obstructionists. The plaintiff has claimed a sum of Rs.3,50,000/- per month from the day of obstruction i.e. 27th March, 2008 till plaintiff gets actual physical possession. In my view, an order in terms of prayer clause (c) cannot be passed in this chamber summons and an independent enquiry will have to be conducted by the appropriate forum for the purposes of determining the actual amount of mesne profit per month to be paid by the obstructionists to the plaintiff. For that appropriate opportunity will have to be given to both the parties to give evidence so that appropriate forum will arrive at figure to be paid by the obstructionists. In view of this, an order will have to : 16 : chs-594-08-Judgment.doc be passed to direct the appropriate officer to conduct the mesne profit enquiry in terms of prayer clause (c). 23. So far as prayer clause (d) is concerned, in the first place, that prayer clause is sought pending disposal of the chamber summons. Now that the chamber summons is being disposed of, there is no question of passing orders in terms of prayer clause (d) against the original defendants. If at all, plaintiff has monetary claim against the defendants on the basis of agreement dated 15th March 2000, it will be open for the plaintiff to institute appropriate proceedings and recover such monies from the defendants as they may be found due and payable. 24. Before I part with the Judgment, it must be mentioned that on 25th January, 2011 learned Counsel appearing on behalf of the plaintiff had filed affidavit being affidavit dated 14th January, 2011. The original of the said affidavit was tendered in the Court on 25th January, 2011. Today at the time of dictation of this order, a copy of the same is made available to the Court. Learned Counsel Mr. Shailesh Shah had informed the Court that Economic Offences Wing, Crime Branch, C.I.D., Mumbai in connection with EOW CR 74/7 under Section 420, 406, 120 (B) of the Indian Penal Code r/w Section 4, 5 and 6 of the Prize Chit and Money : 17 : chs-594-08-Judgment.doc Circulation Scheme (Banning) Act, 1978 had sealed the suit premises. Learned Counsel Mr. Shah submitted that appropriate orders be passed for unsealing the suit premises. In so far as this aspect is concerned, it would not be possible for this Court to pass an order of unsealing the suit premises as this Court would not be able to rule on the said aspect of unsealing the suit premises, particularly because EOW are not before the Court. This Court was required to decide the chamber summons on merits on its civil side. The same is being decided by this order. If at all the suit premises have been sealed by the Bombay Police by making use of some provisions of law, it will be open for the plaintiff to adopt appropriate proceedings to have the suit premises unsealed by filing appropriate proceedings. For the reasons mentioned aforesaid, following order is passed in the chamber summons. ORDER (i) Chamber Summons is made absolute in terms of prayer clauses (a) and (b). (ii) So far as prayer clause (c) is concerned, Prothotonary and Senior Master is directed to nominate an officer of this Court to conduct mesne profit enquiry in terms of prayer clause (c) after plaintiff gets possession of suit premises. : 18 : chs-594-08-Judgment.doc (iii) So far as prayer clause (d) is concerned, if the plaintiff has any monetary claim against the defendants pursuant to consent decree dated 14th March, 2000, the plaintiff is free to adopt appropriate proceedings for recovery of said amount. (iv) Obstructionists do pay to plaintiff costs of this chamber summons. (R.Y.GANOO, J.)