1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.5 OF 2010 Hindustan Petroleum Corporation Ltd. A Govt. of India Enterprises and a Company registered under Companies Act Having its registered office at 17, Jamshedji Tata Road, Mumbai 400 020 and having Mumbai Retail Region at ¾, S.V.Road and Turner Road Junction, Bandra (W), Mumbai 400 050 ...Applicant(Org.Deft.). v. 1 Late Shri Maruti Shankarrao Shirole Since deceased through his legal heirs a) Smt. Ashalaxmi Maruti Shirole age 52 years, Occ: Housewife, b) Shri Dhananjay Maruti Shirole, age about 43 years, Occ: Business 2 Shri Avinash Shankarrao Shirole age 45 years, Occ: Business, All above R/o Bhagirathi Building, 122/3/11, Ghole Road, Pune 411 004 3 Shri Shrikant Bhausaheb Shirole, age 35 years, Occ: Business, R/o. 1121, Samir, Shivaji Nagar, Pune 411 016 ..Respondents(Org.Defts.) Mr.G.S.Godbole, adv. For the Applicant. Mr.A.A.Kumbhakoni i/by T.D.Deshmukh, advs. for the Respondent Nos. 1A, 1B and 2. 2 CORAM : J.H. BHATIA, J. DATED : APRIL 29, 2010 ORAL JUDGMENT: 1 With consent of the learned counsel for the parties, matter is taken up immediately for the final hearing and disposal. 2 To state in brief, Caltex India Ltd. had taken suit premises bearing F.P.No. 569/2/10, City Survey No.1205/2/10 situated at Jangli Maharaj Road, Shivaji Nagar, Pune 5 on a lease for a period of ten years from the original landlord/plaintiffs under a lease deed dated 28.4.1960. Lease was effective from 15.11.1959. As per the terms of the contract, the lessee had the option of renewal for two terms of a period of 10 years each. That option could be exercised before the expiry of the original term or the renewed term of 10 years. Original term of 10 years expired on 14.11.1969 and the first term of the renewal also expired on 14.11.1979. Meanwhile Caltex India Ltd. was also nationalised by the Caltex [Acquisition of Shares of Caltex Oil Refining (India) Ltd. and of the undertakings in India of Caltex (India) Ltd. Act, 1977, which had come into force with effect from the appointed day, being 30th December, 1976. As per the provisions of Section 7 of the Caltex Act, all the rights and liabilities, including right of lease or tenancy in any property held by the Caltex India Limited immediately before that day, would stand 3 vested in the Central Government from the appointed date. As per the provisions of Section 9, rights of the Central Government were transferred to the Government Company, being Hindustan Petroleum Corporation Ltd., which is the present revision applicant and the defendant in the suit. Landlord issued notice on 31.3.2001 terminating the tenancy and called upon the defendants to vacate the premises and to hand over the possession of the same to the landlords. Defendant refused. Therefore, on 21.11.2001 Civil Suit No.610/01 was filed before the Small Cause Court, Pune. On behalf of the defendant, it was contended that at the option of the Government or the Government Company, lease could be further renewed for the total term for which original lessee held the property and, therefore, suit was pre-mature and not tenable. After hearing the parties, the trial Court decreed the suit rejecting all the contentions of the defendant. Defendant preferred Civil Appeal No.317/07 before the District Court. That appeal was also dismissed. Hence, the Revision Application. 3 Heard the learned counsel for the parties and perused the record. It is admitted fact that original lease deed dated 28.4.1960 came into force with effect from 15.11.1959. Original term of the lease was 10 years and, therefore, this would expire on 14.11.1969. There was 4 provision of renewal twice for a period of 10 years each and, therefore, first period of renewal would expire on 14.11.1979 and second term of the renewal would also expired on 14.11.1989. After that there was no provision for further renewal and the lease would expire by efflux of time. On behalf of the defendant, it was contended that by virtue of provisions of Section 7(3) of the Caltex Act, there could be statutory renewal beyond the agreed period which expired on 14.11.1989. In view of authorities in State of U.P. Vs. Lalji Tandon 2004(1) SCC 1; Bharat Petroleum Corporation Ltd. v. Rustom B. Colah (Dr.) 2007(2) Bombay C.R. 870 and in Revision Application 756/09 Hindustan Petroleum Corporation Ltd. v. Navjeevan Co-operative Housing Society Ltd. decided today by this Court, it is now well settled that there could not be any further statutory renewal beyond one renewal. Infact, in the present case, there was provision in the agreement itself for renewal for two terms. That period is also expired. Thus, there is no provision for further statutory renewal. Even if it is assumed to be so, it can be at the most for one more term of 10 years. That period would also come to an end on 14.11.1999. After that the defendant continued in possession, holding over as tenant. However, with the enactment of Maharashtra Rent Control Act, 1999, no protection of Rent Act is available to a 5 company having paid-up capital of Rupees One crore or more. There is no dispute that the defendant is registered under the Companies Act and has a capital of more than Rs.1 crore, therefore, it does not get any protection under the Rent Act. As noted earlier, notice was issued on 31.3.2001 and the suit was filed on 21.11.2001. There is no dispute about the legality of that notice. Taking into consideration all these circumstances, I find that no defence available to the defendant in the present litigation and, therefore, there was no illegality or the irregularity in the impugned judgment and decree passed by the Courts below. 4 The learned senior counsel for the revision applicant /defendant points out that original suit was filed by the plaintiff no.1 Maruti S. Shirole and his brother, plaintiff no.2 as members of the joint family during the pendency of the suit. Plaintiff no.1 died and his widow and two sons were brought on record as his legal heirs. During the pendency of the suit, Rahul who was one of the legal heirs of the original plaintiff no.1 also died on 17.7.2006 but his legal heirs were not brought on record. The learned counsel pointed out that suit was decided and decreed on 12.3.2007 without bringing the legal heirs of the Rahul. According to him, suit would abate and it could not be decreed. Even though this point was raised before Appellate Court, this contention was 6 rejected. The learned counsel relied upon Sheela Vijay Choudhari and others v. Central Bank of India and others 1998(1) Mh.L.J. 928 in support of his contention. In that case, suit was filed by the bank for the recovery of the loan from industry shown as defendant no.1 and its proprietor shown as defendant no.2. Proprietor died and on his death, his legal heirs were brought on record as the defendant nos.2(a) to 2(d) in the suit. Suit was decreed against the defendant no.1, defendant nos.2(a) to 2(d) as well as against the two guarantors. All of them were held jointly and severally liable. Appeal was filed by the defendant nos.2(b) to 2(d) and the name of the original defendant no.2(a) , who was respondent no.2 was deleted. It was held that the decree being joint and indivisible, on account of deletion of the respondent no.2, entire appeal would stand abated and could not be prosecuted. In that case, there was a decree against the defendants including guarantors and all of them were held jointly and severally liable. If one name was deleted in the appeal, decree to the extent of that person would stand confirmed. If the decree, which held them jointly and severally liable was confirmed against one, it could not have been set aside or modified in respect of others, because that would create conflicting position and, therefore, entire appeal would stand abated. In my considered opinion, said authority is not applicable 7 to the facts of the present case. In the present case, original plaintiff nos. 1 and 2, being the members of the joint family and the landlords had filed the suit. On death of the plaintiff no.1, his legal heirs were brought on record. Out of those legal heirs, one died and the suit was continued and decreed. Plaintiffs on record, being the members of the joint family, would be entitled to take back the suit property for and on behalf of the joint family and they would also hold the property for and on behalf of the co-sharers or the members of the joint family. Present suit is not for partition, where the Court would be required to determine individual shares of each member of the family. In the present matter, question is only whether the plaintiffs are entitled to take back property from the tenant. Once they succeed in that, they will hold the property for all the members of the joint family and there is nothing on record to show that there is any dispute between them in respect of the property. Therefore, I find no substance in this contention. 5 As I find no irregularity or illegality in the impugned decree, revision application stands dismissed. 6 In view of the request made by the learned senior counsel for the revision application, execution of the decree shall remain stayed till 9th July, 2010 subject to the defendant filing undertaking before this 8 Court within four weeks to that effect that they shall not create any third party interest or induct any third person in the property. (J.H.Bhatia, J.)