1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3968 of 2008 in Suit No.2924 of 2008 1 Shobha Rikhiram Arora and another ..Plaintiffs vs. 1 Rameshkumar Tulsiram Sachdev alias Rameshkumar Tulsiram Arora and others ..Respondents Mr.Navroz Seervai, Sr.Counsel with Mr.J.P.Sen, Mr.Ranjit Shetty and Mr.Amey Nabar i/b Hariani and Co. for plaintiffs Mr.E.P.Bharucha, Sr.Counsel with Ms.Farzana Behramkamdin with Mrs.Swati Deshpande i/b FZB and Associates for defendant nos.1 and 3 Ms.Gayatri Sharma for defendant no.4. CORAM: S.J.KATHAWALLA J. 14th July, 2009 P.C. 1 Plaintiff no.1, defendant no.1, defendant no.4 and the Advocates of the parties present. Parties to the suit have agreed that pending the hearing and final disposal of the suit, without prejudice to 2 the rigthts and contentions of the parties, the following order be passed in the Notice of Motion. i) Parties agree that there are several flats, rooms and garages in the suit building, particulars of which are set out hereunder. Sr. No. Flat No. Floor Tenant Occupant 1 3 Ground floor M/s Madhav Centre De.Commr Pvt.Ltd. Same as tenant. 2 4 Ground floor M/s KSSR Pvt.Ltd. Shivram Enterprises (India) Pvt.Ltd. 3 5 Ground floor M/s Shivram Enterprises (India) Ltd. Tech.PvtLtd. Same as tenant 4 2 1st floor M/s Shivram E.Tch Pvt.Ltd. Same as tenant. 5 4/Part 1st floor Arora commercial Properties Bombay Same as tenant 6 4/Part 1st floor Promilla Sachdev Same as tenant 7 5 Two Mrs. Kiran Khosla Same as tenant 3 8 5 Four Radhika Satsangi Same as tenant 9 1 Five Mr.R.T. Arora Family of R. T.Arora 10` 2 Five Mr.R.K. Sachdev Same as Tenant 11 3 Five Mr.Tulsiram Nathumal Vijay Arora 12 5/Part B Five Miss Kiron Arora Family of R.T. Arora 13 Garage No.1 Ground M/s Shivram Consultant Pvt.Ltd. Same as tenant 14 Garage No.3 Ground Radhika Sachdev Same as tenant 15 Garage No.4 Ground R.K. Sachdev Same as tenant 16 Garage No.6 Ground Shivram Enterprises (India) Ltd. Same as tenant. 17 Garage No.7 Ground Mr. R.T. Arora Family of R.T. Arora 18 Garage No.8 Ground Mr. Ramesh Kumar Sachdev Same as tenant. 19 Garage No.9 Ground Mrs. Promila Sachdev Same as tneant 20 Room Ground floor Mrs. Promila Sachdev Same as tenant 21 Room Below West Side stair case Mr. Susheela Kapoor Mrs. Promila Sachdev 22 Watch- man Room Ground floor Mrs. Radhika Satsangi Same as tenant 4 23 Room Below East side Stair case R.K. Sachdev Same as tenant 24 Terrace Room Terrace Aruna Rani Promila Sachdev There is some dispute between the parties regarding the correctness of the names of Tenants shown in the above table. This order is, therefore, without prejudice to the rights and contentions of the parties as regards the issue of tenancies. ii) The tenants/occupants in respect of the said flats shall maintain status quo in respect of the said flats/garages/rooms except that the tenants shall be at liberty to either carry on business as sole proprietor/s or enter into franchise agreement/s with third parties for a period not exceeding more than three years at a time. If such franchise agreement/s are 5 entered into, the parties shall in such agreement/s mention this order, more particularly the fact that the franchisee shall have no right, title or interest of whatsoever nature in respect of the premises under their occupation under the said franchise agreement. It will also be mandatory for the parties to annex a copy of this order to every franchise agreement executed between them. iii) As regards the balance flats in the suit property, the Trust shall, in case of surrender of any tenancy, not create any new tenancy but shall be free to create a leave and licence agreement in respect of such premises on the following terms. a) The leave and licence agreement shall not exceed a period of five years at a time. b) In the leave and licence agreement the Trust shall mention that the licensee 6 shall except for the licence created under the agreement not have any other right, title, interest or claim over the licensed premises. c) It will be mandatory for the trustees to annex a copy of this order to each of such leave and licence agreement. d) Before entering into any such leave and licence agreement the trustees shall in writing forward a draft of such leave and licence agreement to the plaintiffs inter alia setting out therein the amount of security deposit as well as monthly compensation, which the proposed licensee is willing to pay to the Trust. The plaintiffs shall be at liberty to give a counter proposal to the trustees within a period of 3 weeks from the date of receipt of the draft agreement provided their counter proposal contains security deposit of the like amount and monthly compensation which is atleast 20% 7 more than the compensation proposed in the draft agreement forwarded by the Trust. If such an offer is given by the plaintiffs the Trust shall accept the same without recourse to Court. If no such offer is received by the Trust within a period of three weeks from the plaintiffs the trust shall proceed to finalise the leave and licence agreement forwarded to the plaintiffs without recourse to court. e) This order shall not preclude the Trust from transmitting any tenancy upon the death of a tenant in accordance with law. However, the Trust shall in writing inform the plaintiffs about the same two weeks prior to transmitting each of such tenancies. f) The interest amount received on the security deposit and the monthly compensation received by the Trust from the licensee and other future income from Shalimar (the suit building) shall be used by the Trustees for 8 the objects of the Trust and the plaintiffs and defendant no.4 in their individual capacities and in their capacity as Trustees of the Arora family Trust shall not claim any amount therefrom even if the plaintiffs ultimately succeed in this suit. The plaintiffs and defendant no.4 shall indemnify the Trustees against any claim that may be made by the beneficiaries of the Arora Family Trust. g) These terms are without prejudice to the rights of the Trust to take action against tenants/occupants/licensees of Shalimar in accordance with law. 2 As regards the accounts of the trust Mr.Bharucha submits that the Trust shall file its accounts as required under the law and if the plaitniffs have any grievance qua the filing of such accounts, they will always be free to move the office of the Charity Commissioner for appropriate reliefs. 9 3 Notice of Motion is accordingly disposed of. Liberty to apply. (S.J.KATHAWALLA J.)