1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION JUDGE S ORDER 302 OF 2009 IN SUIT NO.1609 OF 2009 Smt.Prabha Gangadhar Joshi & Anr. ...Plaintiffs vs. Narandas Karsandas & others ...Defendants Mr.B.Unnikrishnan for the plaintiffs Mr.Shyam Mehta a/w Ms Deepali Deshmukh a/w Ms B. John i/b Wadia Ghandhy & Co. for the defendant no.3 Mr.N.M.Ganguli for defendant Nos.4 and 5. CORAM :A.S.OKA,J. DATE : DECEMBER 2, 2009 P.C. 1 Heard the learned counsel for the 3 rd defendant in support of the prayer for the Judges Order. I have heard the learned counsel for the plaintiffs. I have also heard the learned counsel for the 4 th defendant. 2 The 3 rd defendant filed a suit for eviction in the court of Small Causes to which the 4 th defendant herein has been impleaded as 2 nd defendant. The 2 nd plaintiff herein has been impleaded as 3 rd defendant. Writ Petition no.327 of 2004 was filed by the 4 th defendant in this court praying for various reliefs. Writ petition was disposed of by this court by order dated 21 st July 2004 by passing order in terms of the minutes of the order signed by the petitioner therein (4 th defendant herein) and the first respondent (3 rd defendant herein). As per 2 the order passed in the writ petition an undertaking of the 3 rd defendant was recorded to the effect that the said defendant shall not execute the decree which may be passed by the Court of Small Causes in the R.A.E. &R Suit no. 387/833 of 1992 against the 4 th defendant without obtaining a leave of this court in the present suit. It appears that the said suit filed by the 3 rd defendant has been decreed by the court of Small Causes on 30 th October 2007 and a decree for possession has been passed in favour of the 3 rd defendant in respect of the flat no.4 situated on the 3 rd floor and two stilts on the ground floor of the building known as `Vasundhara situated at Ganesh Peth Lane (Off. Ram Maruti Road), Dadar,400 028. It must be stated here that the suit property which is subject matter of the suit filed by the 3 rd defendant is a part of the suit property which is subject matter of the present suit. 3 It is stated that the 4 th defendant has preferred an appeal against the said decree and even the plaintiffs in the present suit have preferred a separate appeal. The said Appeals are still pending. 4 The prayer for grant of leave to execute the decree as against the 4 th defendant is opposed by the 4 th defendant and plaintiffs on various grounds. 3 5 The learned counsel for the 3 rd defendant has invited my attention to the prayer made in this suit. He submitted that the substantive prayer in the suit is for declaration that the plaintiffs and the 4 th defendant have a valid charge on the larger property more particularly described in prayer clause (a) which includes the property subject matter of the suit in the Court of Small Causes. He pointed out that other substantive relief is for money decree in the sum of Rs. 1,72,736/- together with interest at the 18% p.a from the date of institution of the suit till passing of the decree and interest on the decretal amount at the rate of 6% p.a from the date of decree till payment. He pointed out that further prayer is that in the event the defendant against whom money decree is passed commits default, the property be ordered to be sold. He submitted that neither the plaintiffs nor the 4 th and 5 th defendants have claimed any ownership or title over the larger property. Their contention is that there is a charge on the property for the amount which remained unpaid by the mortgagor with interest thereon. He submitted that this is a case where leave will have to be granted. 6 The learned counsel for the plaintiff submitted that even plaintiffs have preferred an appeal before the Appeal Bench of the court of Small Causes for challenging 4 the decree. He submitted that by grant of leave, appeal will become infructuous. He submitted that as of today there is no adjudication in this suit on the question whether the 1 st defendant in this suit is the owner of the larger property or whether the 2 nd and 3 rd defendants are the owners. 7 The learned counsel for the 4 th defendant submitted that the appeal preferred by the 4 th defendant against the decree is pending before the Appeal Bench of the court of Small Causes. He submitted that by grant of leave, the right of appeal of the 4 th defendant cannot be allowed to be frusted. He submitted that the considering the prayers in the plaint, the issue whether the 3 rd defendant who is the plaintiff in the Small Causes Court suit is the owner of the property or not will be decided in the present suit. He submitted that the decree passed in the suit filed in the Small Causes Court is not only against the 4 th defendant but is against many other defendants including the plaintiffs in the present suit. He submitted that in view of the pendency of the present suit, leave cannot be granted. 8 The learned counsel for the 3 rd defendant stated that without prejudice to the rights and contentions of the 3 rd defendant, the said defendant is ready and willing to deposit a sum of Rs.2,37,302/-. He pointed 5 out that the said amount includes a sum of Rs.1,72,736/- as claimed by the plaintiffs together with interest on the principal amount of Rs.54,950/- at the rate of 6% p.a. from the date of institution of the suit till the date. The learned counsel for the plaintiffs submitted that the amount due is more Rs.1 crore. 9 I have given careful consideration to the submissions. The suit filed by the 3 rd defendant in the Court of Small Causes is on various grounds under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). One of the issues raised in the said suit is whether the 3 rd defendant and the 2 nd defendant herein are the owners and landlords of the property subject matter of the said suit. The said issue has been answered in favour of the 3 rd defendant. 10 Perusal of the plaint in this suit shows that the allegation made by the plaintiffs is that the larger property was owned by one Madhukar Garge who executed a deed of mortgage dated 30 th July 1969 in favour of Mrs.Kulabi Salebhai Bandukwala and three others. Mortgage was for securing the loan of Rs.1,25,000/- advanced by the mortgagees to the said Mr.Garge. The case is that in May 1979 a sum of Rs.54,950/- remained unpaid out of the mortgage amount. Reliance is placed on 6 the indenture of the transfer of mortgage dated 4 th May 1978 executed in favour of one Gangadhar Vishwanath Joshi (the predecessor of title of the plaintiffs and 4 th and 5 th defendants) for the purpose of securing the said amount of Rs.54,950/- advanced by the said Gangadhar. The case of the plaintiffs is that the execution of the said deed of transfer, the mortgagor Mr.Madhukar Garge paid to the original mortgagees a sum of Rs.54,950/-. The mortgagor had borrowed the said amount of Rs.54,950/- from the said Gangadhar. The case is made out in the plaint is that as the mortgagor did not make payment either of the principal amount of Rs.54,950/- or the interest due thereon to the plaintiffs and the 4 th and 5 th defendants on the date of institution of the suit, a sum of Rs.1,72,736/- was payable to the plaintiffs and 4 th and 5 th defendant out of which Rs.54,950/- is the principal amount and the balance amount is interest on the principal amount at the rate 18% p.a. The first substantive prayer in the suit is that the plaintiffs and 4 th and 5 th defendant have valid charge on the larger property for repayment of the loan. The second prayer is for declaration that the 1 st defendant or the 2 nd defendant and 3 rd defendants are the legal owners of the suit property. The third prayer is for a decree against the 1 st defendant or in the alternative against the 2 nd and 3 rd defendants to pay to the plaintiffs and 4 th and 5 th defendants be ordered to pay a sum of Rs.1,72,736/- with 7 interest at the rate of 18% p.a. Perusal of the plaint shows that the plaintiffs or 4 th and 5 th defendants have not set up any title in respect of the larger property or the property subject matter of the suit in the Court of Small Causes. They have not claimed any ownership rights in respect of the said property. The 3 rd defendant by filing a suit in the court of Small Causes claimed that she along with 2 nd defendant herein are the owners and landlords in respect of the suit premises. The issue whether there exists landlord-tenant relationship can only be decided by the Court of Small Causes. However, any finding given by the Court of Small Causes on the title or ownership is not conclusive and notwithstanding any finding recorded by the Court of Small Causes on the issue of title, the parties can agitate the issue of title before the competent civil court. 11 The particulars of the claim in the suit are set out in Exh.D-1. The claim is quantified at Rs.1,72,736/- which includes the principal amount payable as on May 1978 of Rs.54,950/- and interest at the rate of 1.5% per month from May 1978 up to 31 st March 1990. The plaintiff and the 4 th and 5 th defendants are claiming interest on the sum of Rs.1,72,736/- at the rate of 18% p.a from the date of institution of the suit till the decree and further interest at the rate of 6% p.a on the said amount 8 from the date of decree. The 3 rd defendant has shown willingness to deposit a sum of Rs.2,37,302/- in this court which includes the amount of Rs.1,72,736/- plus interest on the sum of Rs.54,950/- from the date of institution of the suit till 30 th November 2009. If the said amount is deposited by the 3 rd defendant the claim of the plaintiffs and the defendants in this suit will be substantially secured. 12 Even if leave to execute the decree is granted in favour of the 3 rd defendant herein, it will not defeat or frustrate the appeals preferred by the 4 th defendant and the plaintiffs against the decree of eviction. It is obvious that the 4 th defendant will be entitled to apply for stay of execution of the decree in the pending appeal and even if the such application is made, the Appellate Court is bound to consider the said application on merits without being influenced by the fact that the leave sought by the 3 rd defendant has been granted by this court. Sufficient time can be granted to the 4 th defendant to apply for stay in the pending appeal. Merely because leave is granted it will not amount to adjudication on any of the issues involved in the present suit as well as in the pending appeals in the Court of Small Causes. Considering the frame of this suit and the prayers made therein there is no impediments in the way to granting leave in favour of the 3 rd defendant to 9 execute the decree against the 4 th defendant. The claim of the plaintiffs in this suit is essentially a monetary claim. 13 Hence, I pass the following order : i) There will be an order in terms of the Judges Order which is separately signed subject to the 3 rd defendant depositing with the Prothonotary and Senior Master a sum of Rs.2,37,302/-. The deposit of the said amount by the 3 rd defendant will be without prejudice to the rights and contentions of the parties to the suit. The said amount shall be invested in fixed deposit by the Prothonotary and Senior Master in any nationalised bank in fixed deposit and the fixed deposit shall be renewed from time to time till the disposal of the suit. The order regarding disbursement/withdrawal of the said amount together with interest accrued thereon will be passed at the time of final disposal of the suit. ii) It is made clear that all contentions of the parties in the pending appeals before the Court of Small Causes are expressly kept open. iii) Notwithstanding the grant of leave as prayed 10 it will be open for the 4 th defendant to apply for stay of execution of the decree for possession in the pending appeal. If such application is made, the Appellate Court will decide the same in accordance with law without being influenced by grant of leave under this order. iv) To enable the 4 th defendant to apply to the Court of Small Causes for grant of stay of execution of the decree, the 3 rd defendant will not act upon this order for a period of 12 weeks from today. JUDGE