1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2312 OF 2008 IN SUIT NO.2903 OF 1996 Ulka Manu Kapadia &Ors. ...Plaintiffs. Vs. Harish Ramanlal Kapadia & Ors. ...Defendants. .... Mr. Vishal Kanade and Mr.Sushant Chavan i/b. M/s. Shiralkar & Co. for the Plaintiffs. Ms.Meena Kshirsagar i/b. S.K. Mishra for Defendant Nos.3 and 8. Mr.Satish Shetye with Mr.Nikhil Rajani i/b. V. Deshpande & Co. for Defendant No.9. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 18, 2008. P.C. The Notice of Motion has been taken out by the Ninth Defendant for the recall of an order passed by this Court on 21st November 2007. The order of the Court reads as follows : “ The Notice of Motion has been taken out by the Bank of India, which is the Ninth Defendant to the suit, seeking the permission of the Court to surrender its tenancy right and to hand over possession to the Receiver. The application by the Bank has not been opposed by any of the parties before the Court. The Court Receiver shall place a report before the Court, should any dues payable by the 2 Ninth Defendant upto date remain unpaid so as to facilitate further orders of the Court. Counsel appearing on behalf of the Ninth Defendant states that possession will be handed over to the Receiver within a period of 8 weeks from today. The statement is accepted. In these circumstances, the Motion is made absolute in terms of prayer clause (a).” Prayer (a) of the Notice of Motion in terms whereof the earlier Motion was made absolute, reads as follows: “(a) that pending the hearing and final disposal of the aforesaid suit, the Defendant No.9 be permitted to surrender their tenancy right in respect of the building “C” and “D” consisting of 8 flats having ground and 1st floor in the Mahabaleshwar property forming part of the estate of the late Shri Ramniklal Mohanlal Kapadia, the subject matter of suit being Exhibit “X” to the Plaint along with the fitting, fixtures and furniture within the compound of “Yenna” Lodge and to handover peaceful vacant possession thereof to the Court Receiver, High Court, Bombay who thereafter can hold the said possession on behalf of the parties to the aforesaid suit and shall handover the same subject to the orders that may be passed by the Hon'ble Court in the aforesaid suit.” 2. The order of the Court dated 21st November 2007 records that it was the Ninth Defendant which sought permission of the Court for surrendering its tenancy right and for handing over possession to the Receiver. The prayer was not opposed. The statement was made before the Court by the Ninth Defendant that possession would 3 be handed over within a period of eight weeks from that date which was accepted. While making the motion absolute, the Ninth Defendant has been permitted to surrender its tenancy rights. The jural relationship between the parties has, therefore, ipso facto come to an end on the surrender of tenancy rights by the Ninth Defendant. 3. Counsel appearing on behalf of the Ninth Defendant has submitted that the surrender took place in the circumstance that electricity and water dues had not been paid and as a result thereof, the premises were not habitable. That position, it is now stated before the Court, has altered. The motion has been opposed both by the Plaintiffs as well as Defendant Nos.3 and 8 on whose behalf Learned Counsel urged submissions before the Court. There is merit in the submission which has been urged on behalf of the contesting Defendants and by the Plaintiffs that once the surrender of tenancy rights was accepted by the Court as reflected in the order dated 21st November 2007 and this surrender was in pursuance of the statement made by the Ninth Defendant, the jural relationship stands terminated and cannot be revived at the present stage. The fact that formal 4 handing over of possession has not taken place is not a circumstance which can weigh in favour of the Ninth Defendant because in the order dated 24th November 2007, this Court recorded the statement of the Ninth Defendant that possession would be handed over to the Receiver within a period of eight weeks. The Ninth Defendant is bound to comply with the solemn undertaking given to the Court in terms of the statement recorded in the order. Counsel appearing on behalf of the Ninth Defendant has fairly accepted before the Court that the Ninth Defendant is not even a protected tenant under the Maharashtra Rent Control Act, 1999. 4. In the circumstances, the Notice of Motion is lacking in substance and shall accordingly stand dismissed. .....