1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3901 of 2009 in Suit No.2863 of 2009 Adecco Flexione Worksforce Solutions Ltd. ..Plaintiffs vs. Uttam Jain and another ..Defendants Mr.V.P.Dhond i/b Desai and Desai Associates for plaintiffs. Mr.Sanjay Jain i/b Mr.Ramesh Jain and Ms.Kusum Jain for defendants. CORAM: S.C. DHARMADHIKARI J. 7th December, 2009 P.C. 1 This is a Notice of Motion in a suit filed under section 6 of the Specific Relief Act. 2 From the record it is apparent that the plaintiffs are engaged in the business of providing outsourcing services and they and the defendants entered into leave and licence agreement in respect of the suit premises. 2 That licence agreement is dated 29th October, 2006. It was for a period of 36 months commencing from 15th December, 2006. 3 After referring to the terms and conditions in paragraph 3 of the plaint, this is what is alleged: 3.The plaintiff states that from the time it was inducted into the licensed premises on 15/12.2006 as a license till 6/10/2009 when it was wrongfully dispossessed by the defendants from the licensed premises without its consent and without the following due course of law, its possession all along of the licensed premises has been lawful and uninterrupted. The plaintiff, however, states that during the month of May, 2009, on account of the economic rec ession it underwent some financially tough time when its business also was 3 not doing too well. During this period the plaintiff had requested the Defendants to permit it to shorten the term of the leave and licence agreement. In this regard, the plaintiff had addressed a letter dated 15.5.2009 to the defendants informing them that on account of the current economic recession the plaintiff was desirous of vacating the premises forthwith and handing over the same to the Defendants. By the said letter, the plaintiff had also requested the defendants to hand over the remaining post dated cheques to it along with the interest free security deposit amount of Rs.24,92,160/- The defendants have by their letter dated 25.5.2009 replied to the plaintiff and have declined to accede to the plaintiff s request for shortening the 4 tenure of the agreement by drawing the plaintiff s attention to the lock in period of the agreement agreed to therein. Hereto annexed and marked as Exhibit B is a copy of the plaintiff s letter dated 15.5.2009 addressed to the defendants. Hereto annexed and marked as Exhibit C is a copy of the defendants reply dated 25.5.2009 to the plaintiff. The plaintiff states that on account of the defendants not agreeing to the request of the plaintiff to shorten the duration of the leave and licence agreement,the plaintiff continued to be in possession of the licensed premises and continued to pay the monthly licence fee and honour its post dated cheques as per the originalo agreement contained in the leave and licence agreement dated 29th December, 2009. 5 4 In paragraph 4 events of June, 2009 are narrated and in paragraph 5, a reference is made to a meeting of 1st September, 2009. It is contended that there is no question of the plaintiffs handing over possession of the premises in as much as their goods and articles were lying there. Further, their security deposit was retained by the defendants. Thus, according to the plaintiffs, all ingredients of section 6 of the Specific Relief Act are satisfied. The plaintiffs are dispossessed forcibly and without due process of law. Therefore, the ad-interim relief should be granted in terms of the prayers of the Notice of Motion or at least the defendants should be restrained from inducting anybody else in the premises or transferring the same till disposal of the suit. 6 There is an affidavit in reply filed 6 by the defendants and they have pointed out that both the suit and motion are containing false and misleading statements. The true and relevant facts are suppressed. It is urged that there is no consistency and clarity in the version of the plaintiffs being dispossessed wrongfully, without consent and without due process of law. It is stated that although the plaint proceeds to allege that the plaintiffs were dispossessed forcibly on 6th October, 2009, in the complaint made to the police it is not the case of the plaintiffs that they were so dispossessed. A copy of the complaint made to the police is annexed to the plaint and my attention is invited to the same. Further, my attention is invited to the letter annexed to the plaint at annexure B, reply thereto, at annexure C and further letter dated 2nd June, 2009. It is then contended that the Advocate s letter of 5th October, 2009 which is dispatched on 7 7th October, 2009 also does not contain any statement that the plaintiffs were wrongfully dispossessed on 6th October, 2009. Therefore, if the plaintiffs approached the Court with a false case, by suppressing the relevant facts, then, the Court should not grant any equitable and discretionary relief. All other aspects touching the retention of the security deposit are the matters which are not within the purview of the instant case. 6 Having perused the plaint, annexures thereto and the affidavits in reply and rejoinder, I am in agreement with the contention of Mr.Jain that the plaintiffs have not approached this Court with clean hands. From the perusal of the plaint itself, it is apparent that the leave and licence agreement has been executed. Security deposit was to be an interest free refundable security deposit as is the stipulation in the leave and licence agreement. Clause 12 of the 8 security agreement is something which need not be gone into in details so also the concept of lock in period therein. The fact remains that the plaintiffs themselves wrote a letter to the defendants on 15th May, 2009 whereby they state that they would be vacating the premises on account of current economic recession. Thereafter there is a reply to the same and it is stated by the defendants that the agreement cannot be terminated and they would go ahead and deposit the cheques. Yet, again the plaintiffs case that they would vacate the premises on account of current economic recession is reiterated on 2nd June, 2009. In the police complaint, what is stated is that from two months prior to 6th October, 2009, the defendants have been using the said premises without permission of the plaintiffs. This is a statement of the plaintiffs authorized office. This is their 9 own case. Mr.Vivek Kant is their General Manager. He has made a complaint to the police and in the complaint itself he states that two months prior to the letter/complaint the office has been used by the defendants. 7 In paragraph 3 of the complaint, it is stated that without paying any heed to the requests of the security of the plaintiffs Mr.Uttam Jain (defendants) entered the premises and they are using it. The complaint is that the said Mr.Uttam Jain is abusing the security guards. Further, it is stated that the keys are with Mr.Uttam Jain. The complaint seems to suggest that the plaintiffs have vacated the premises and thereafter whatever acts or deeds are performed in the said premises by Mr.Uttam Jain and others, the plaintiffs should not be held responsible for the same. 9 This appears to be in consonance with the letter dated 8th October, 2009 10 annexure H to the plaint. Therefore, there is some substance in the contention of Mr.Jain that the case of settled possession of the plaintiffs is not made out from the plaint averments themselves. There is not a single document including payment of telephone charges, electricity bills etc. so as to prove that the plaintiffs were in physical possession at least from the date of addressing letters in June, 2009. 10 For the afore mentioned reasons and finding that the plaintiffs own case is doubtful and suspicious, there cannot be any ad=interim relief. Prayer in that behalf is rejected. Notice of motion stands disposed off. (S.C.DHARMADHIKARI J.)