1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.167 OF 2009 IN SUMMARY SUIT NO.1954 OF 2003 Government of Republic of Mauritius .. Plaintiff Versus Nitin M. Parekh and Anr. .. Defendants Mr.Raja Ratan Bhura i/b. Singhania Legal services for plaintiffs Mr.V.Dubhash i/b. Ratna Jaiswal for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 3rd March 2009. P.C. . This is a Motion by the defendants to set aside an ex parte decree dated 23rd September 2003 passed in the above summary suit. 2. The contention of Mr.Dubhash appearing for defendant is firstly that the writ of summons was not served. He invites my attention to the 2 affidavit in support of this notice of motion and contends that the same would show that the writ of summons was issued on 29th July 2003. However, the same was not served upon the defendants. The ex parte decree was passed on 23rd September 2003. The suit itself was instituted on 2nd April 2003. 3. When his attention was invited to Order XXXIII Rule 7 of C.P.C. and the necessity to point out special circumstances, which alone would enable the court to exercise the powers under Order XXVII Rule 4 of C.P.C. invoked by the defendant, Mr.Dubhash would urge that the claim in the suit is that the plaintiff is Government of Mauritius. It is a foreign state within the meaning of section 87(A) of C.P.C. The defendants are the owners of flat No.21, Maker Tower "H" Coop.Housing Society, Cuffe Parade, Mumbai. Plaintiff hired the flat on leave and licence basis and an agreement to that 3 effect was executed on 10th October 1997. The terms of the leave and licence agreement are that it was a licence for 33 months, renewable after every 11 months. The licence was for use of the premises as residence. The plaintiff had to deposit Rs.1,25,10,000/- by way of refundable interest free security deposit and compensation was Rs.18,000/- per month. On expiry of the agreement i.e. on 6th November 2000, the security deposit was to be refunded and possession was to be handed over if the licence is not renewed. However, even if the licence is not renewed but the defendants fail to refund the security deposit, then, the plaintiff is entitled to retain the flat and also claim interest. It is stated that the plaintiff regularly paid the licence fees till last month of licence period i.e. 7th October/6th November 2000. The defendant has not refunded the security deposit. In these circumstances, the suit has been filed. My attention is invited to para Nos.8 to 12 of 4 the plaint and it is contended that there are arguable issues, inasmuch as plaintiffs are pleading oral understanding. Further, Mr.Dubhash contends that it is pointed out in the affidavit in support itself that the plaintiff has been enjoying the suit premises without paying requisite amount. The last quarterly payment was made for the quarter ended on 30th June 1999. Since then, the plaintiffs have failed and/or neglected to make payment. The proceedings with regard to the suit premises are also pointed out. Mr.Dubhash then relies upon the pleas raised in the affidavit in support to the effect that there is default by plaintiff and, therefore, liquidated damages can be claimed. 4. In support of his contention Mr.Dubhash has relied upon a Division Bench judgement of this Court reported in 2007 (3) Mh.L.J. 8. (Ravi Prakash Khemka & Anr. Vs. Bank of India & Ors.). He submits that the contentions raised 5 therein by the appellant in identical circumstances have been accepted. He submits that it is not as if this Court has accepted that a summary suit would be maintainable, without anything more, for a refund of security deposit. He submits that the plaint averments will have to be tested on the touch stone of the principles laid down by the Division Bench, which is nothing but reiteration of the Supreme Court decision. 5. In these circumstances, he submits that arguable case is made out and an opportunity be given to the defendants to defend the suit claim. Defendants are ready and willing to deposit in this Court a sum of Rs.40 lakhs within such time as stipulated by this Court. 6. On the other hand, plaintiffs’ Counsel would urge that the suit summons was duly served and there is no substance in the allegations in that behalf. The suit summons is received but no 6 steps have been taken for about 5-6 years to defend the claim. As far as merits are concerned, it is pointed out that in the plaint the plaintiff has specifically averred that after the licence had expired the plaintiffs were ready to vacate the premises but defendants failed to refund the security deposit and till date have not refunded the same. There were several attempts made to resolve the matter outside the Court but there is no response. For all these reasons it is contended that the motion be dismissed. 7. I have perused the motion and the affidavit in support so also annexures thereto and the plaint with the assistance of the learned counsel. I have also perused the reply and Division Bench decision relied upon. 8. If the plaint averments are taken into consideration in the light of the annexures to 7 the plaint, then it is apparent that the claim arises on the basis that the defendants are the owners of the flat and plaintiffs are licensees. That the security deposit was advanced and paid, which is refundable. There was also compensation determined for the licence arrangement which was to come to an end on 6th November 2000. The claim is on the basis that despite plaintiff being ready and willing to vacate the flat the refund is not forthcoming. However, the plaint averments make a reference to the leave and licence agreement and states that there is an oral understanding for adjustment of the licence fee from the amount of security deposit and interest thereon. Further, it is contended that on the basis of the correspondence, there was an extension which was contemplated but the plaintiff refused to extend the time that is how the amount is due and payable. It is in that context that the averments in para 12 of the plaint must be seen. Paras 12 and 13 read thus:- 8 "12. That the security deposit is a debt, which is due and payable under the agreement. The defendants were entitled to hold the security deposit till the expiry of the Leave and Licence, which expired on November 6, 2000. That the defendants have admitted the debt by their letters dated May 14, 2001 and June 20, 2001 and by July 20, 2001." "13. That the defendants are avoiding and neglecting to refund the security deposit. That the defendants have no intention to repay the said security deposit. Therefore, the plaintiff is constrained to file this suit for the recovery of the amount of the Security Deposit of Rs.1,25,10,000/-. That under clause (c)(i) is entitled to an interest @ 15% per annum on the security deposit 9 till the security deposit is repaid. The total outstanding amount till the date of filing of this and after adjustment of the licence fees is Rs.1,63,84,500/- and described in the Statement of Claim annexed to the plaint." 9. In my view, whether the claim as set up by the plaintiff is maintainable under Order XXXVII Rule 2 of C.P.C. is something which cannot be brushed aside. That will have to be decided on the basis of plaint averments and the pleas raised in the affidavit in support of this notice of motion. Further, the principles laid down in the Division Bench decision would also have to be satisfied, before the plaintiff can claim a decree in their favour. Admittedly, such a opportunity is not afforded to the defendants. Apart from the fact that the suit summons was served but no steps were taken, if that itself is 10 enough to decree the claim without the Court being satisfied with regard to its maintainability under Order XXXVII Rule 2 of C.P.C., is also an important aspect of the matter. More so, considering the Division Bench decision. 10. Lastly, the pleas raised in the affidavit in support of the notice of motion and the plaint averments so also the correspondence on record, would show that there are special circumstances made out by the defendants so as to enable them to seek permission of the Court to defend the suit. Further, they are ready and willing to abide by such conditions as are imposed by the Court. 11. In these circumstances and for the reasons set out hereinabove, following order would meet the ends of justice. 11 12. Upon defendants depositing in this Court a sum of Rs.45 lakhs within a period of eight weeks from today, the decree in the subject summary suit shall stand set aside. Thereafter, it would be open for the plaintiff to serve the summons for judgement on the defendants. After the said summons for judgement is served, it will be open for the defendants to file a reply dealing with the plaint averments and seeking leave of the Court to defend the suit. 13. Needless to state that in default, this motion shall stand dismissed and further needless to add that thereupon the decree will also stand and become enforceable and executable in accordance with law. (S.C.Dharmadhikari, J)