1 NMS766.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 766 OF 2011 WITH NOTICE OF MOTION NO. 2014 OF 2010 IN SUIT NO. 1962 OF 2010 Sanjil Moti Ramchandani. ... Plaintiff. V/s. Nirmal Moti Ramchandani & Anr. ... Defendants. Mr. P.S. Gidwani for the Plaintiff. Mr. A.M. Vernekar for the Defendants. CORAM : R.Y. GANOO, J. DATED : 01st APRIL 2011. P.C. :- This Motion is taken out by the Defendants seeking permission to give flat more particularly described in prayer clause (a) of the Motion on leave and licence basis to M/s. Benett, Coleman & Co. Ltd. or some other party in the event of order dated 18th August 2010. 2. I have heard learned Counsels on both sides. The Plaintiff herein is trying to establish his share to the extent of 1/3rd in the aforesaid flat. In the past, Defendant No.1 was permitted to execute leave and licence agreement and the same is valid till 16th April 2011. It is to be noted that the 2 NMS766.11.sxw Plaintiff as well as Defendant No.2 are in U.S.A. and Defendant No.1 is staying at Pune at flat situate at Harmes Heritage, Phase-2, Shastri Nagar, Off Nagar Road, Yerwada, Pune – 411 006 (hereinafter referred to as said flat). 3. Learned Counsel for the Defendants contended that if the flat at Bombay is kept vacant, it would be waste and keeping the flat in Bombay unoccupied would mean that Defendant No.1 who is depended upon the income of the said flat would be deprived of the said income. It is to be noted that the flat stands in the name of father of the Plaintiff as well as Defendant No.1. The flat was purchased in the name of father of the Plaintiff and Defendant No.1. Father of the Plaintiff is no more. The Plaintiff is staking her claim in the said flat on the ground that father of the Plaintiff was the sole owner of the flat and name of Defendant No.1 was incorporated as a matter of formality. This claim of the Plaintiff is being decided in the present Suit. 4. Looking to the facts and circumstances, it will not be proper to keep the said flat vacant. There is even a possibility of the same flat being taken over by trespassers by force as the Plaintiff, Defendant No.1 and Defendant No.2 are normally staying out of Bombay. If the flat is generating income, the said flat must generate income. It is on this principle, I am inclined to allow Defendant No.1 to execute a leave and licence for a period of three years commencing from 17th April 2011. 3 NMS766.11.sxw 5. The Court was informed by the learned Counsel for the Defendants that the compensation which is going to be fixed is approximately Rs.1,60,000/- and proportionate increase on a year to year basis. Looking to the relevant figures which were made available by the learned Counsel for the Defendants as regards property tax and income tax which may be payable in the beginning, Defendant No.1 would be getting in her hand on an annual basis sum of Rs.3,50,630/-. In my view, looking to the claim of the Plaintiff, it would be proper to direct Defendant No.1 to deposit in Bank Account in Bombay to be opened by the Plaintiff monthly a sum of Rs. 10,000/- commencing from the month of April 2011 till the expiration of the licence. The amount so deposited can be withdrawn by the Plaintiff and he can enjoy it for his personal purpose. However, this withdrawal shall be subject o accounts to be considered at the time of disposal of the Suit. 6. In view of the above, following order is passed to dispose of the Notice of Motion :- (i) Motion is made absolute in terms of prayer clause (a). (ii) Upon execution of leave and licence agreement, Defendant No.1 shall supply to the Plaintiff’s Advocate a true copy of the leave and licence agreement within 15 days from date of agreement. The Plaintiff or his 4 NMS766.11.sxw Advocate shall inform to the Advocate for the Defendants the account number and particulars thereof so that Defendant No.1 shall deposit in the said account a sum of Rs.10,000/- per month commencing from April 2011. This monthly deposit to continue till the licence will remain in force. The Plaintiff is permitted to withdraw the said amount for his personal enjoyment. This amount which will be deposited in the account of the Plaintiff is subject to accounts, to be settled at the time of the disposal of the Suit. There shall be no order as to costs. (iii) A copy of the leave and licence agreement shall also be filed in the Court alongwith the forwarding letter by the Advocate for Defendant No.1. 7. Main Notice of Motion No. 2014 of 2010 now stands adjourned to 13th June 2011. (R.Y. GANOO, J.)