Case: National Textile Corp.Ltd Vs. Nareshkumar Badrikumar Jagad

A. The suit premises belongs to the trust run by the respondents - Nareshkumar Badrikumar Jagad & Ors. Sh. Damodar Dass Tapi Dass and Sh. Daya Bhai Tapidas executed a lease deed dated 11.3.1893 in respect of the suit premises admeasuring 12118 sq. yds. bearing plot no. 9 in Survey No. 73 of Lower Parel Division, N.M. Joshi Marg, Chinchpokli, Mumbai-400 011, in favour of a company named Hope Mills Limited for a period of 99 years commencing from 22.10.1891. The lease so executed was to expire on 21.10.1990.B. The original owners transferred and conveyed the suit property in favour of one Harichand Roopchand and Ratan Bai on 22.2.1907. Thereafter, the suit property came to be vested in and owned by a public charitable trust, namely, Harichand Roopchand Charity Trust (hereinafter called as `Trust).C. The leasehold rights in respect of suit property stood transferred to Prospect Mills Ltd. and, thereafter to Diamond Spinning & Weaving Co. Pvt. Ltd. and, ultimately, vide a lease indenture dated 25.10. 1926 to Toyo Poddar Cotton Mills Ltd. (hereinafter called the `Poddar Mills).D. The Textile Undertakings (Taking over of Management) Act, 1983 (hereinafter called `the Act 1983) was enacted by the Parliament in order to take over the management of 13 textile undertakings including the Poddar Mills pending their nationalisation. The lease granted in favour of Poddar Mills expired by efflux of time on 22.10.1990. Thus, the said Poddar Mills continued as a tenant by holding over the suit premises. The Trust issued a legal notice dated 2.12.1994 to the National Textile Corporation (hereinafter called as the appellant), terminating its tenancy qua the suit premises. The Parliament enacted the Textile Undertakings (Nationalisation) Act, 1995 (hereinafter called `the Act 1995). The Trust filed an eviction suit against the appellant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called `the Act 1947). The Act 1947 stood repealed by the Maharashtra Rent Control Act, 1999 (hereinafter called `the Act 1999). The respondent- Trust issued a notice for terminating the tenancy of the appellant vide notice dated 26.9.2000. The respondents/plaintiffs after withdrawal of the suit filed under the Act 1947, filed a fresh suit in the Small Causes Court at Bombay seeking eviction of appellant and for a decree of mesne profits on 20.4.2001. The appellant filed the written statement denying the pleas taken by the respondents/plaintiffs. The suit was decreed in favour of the respondents/plaintiffs vide judgment and decree dated 5.8.2006 by which the appellant was directed to hand over vacant and peaceful possession of the suit premises to the respondents within four months.E. Being aggrieved, the appellant preferred Appeal No. 627 of 2006 to the Division Bench of the Small Causes Court at Bombay on 13.11.2006 which was dismissed by the appellate court by affirming the judgment and decree of the trial court vide judgment and decree dated 14.8.2008. The appellant preferred civil revision before the High Court of Bombay, which has been dismissed vide impugned judgment and order dated 3.8.2009.Hence, this appeal.

Reasoning: 6. In the instant case, no reference had ever been made by the appellant to the effect of the provisions of the Act 1995 before the trial court while filing the written submissions; neither any issue has been framed; nor arguments had been advanced in regard to the same; this issue has not been agitated either before the appellate court or revisional court. Before us, an application has been filed to urge additional grounds regarding the application of the Act 1995 without seeking amendment to the pleadings (WS).7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition thata rule relief not founded on the pleadings should not beA decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.law on the issue stands crystallised to the effect that a party has to take proper pleadings and prove the same by adducing sufficient evidence. No evidence can be permitted to be adduced on a issue unless factual foundation has been laid down in respect of themeans having obtained an absolute and indefeasible right. It refers to and is used for transfer or conveyance. `Vesting in the general sense, means vesting in possession. However, `Vesting does not necessarily and always means possession but includes vesting of interest as well. `Vesting may mean vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act. Word `Vest has different shades, taking colour from the context in which it is used. It does not necessarily mean absolute vesting in every situation and is capable of bearing the meaning of a limited vesting, being limited, in title as well as duration. Thus, the word `vest clothes varied colours from the context and situation in which the word came to be used in the statute. The expression `vest is a word of ambiguous import since it has no fixed connotation and the same has to be understood in a different context under different set ofAct 1995 has been brought for providing the acquisition and transfer of the rights, title and interest of the owners in respect of the textile undertakings. Respondents had not been the owner of the textile undertaking. They had rented out the premises to Poddar Mills and what had vested in the Central Government was only the right, title and interest of the Poddar Mills and nothing else. The Poddar Mills was having only right in tenancy in the suit premises. The owner had been defined in clause (g) of Section 2 of the Act 1995, taking into consideration the expression in relation to textile undertaking as a proprietor or lessee, or occupier of the textile company undertaking. It included even the receiver and liquidator where the companies had gone under liquidation. Textile undertaking has been defined in Section 2(m) which means undertaking specified in column (2) of the First Schedule to the Act 1995 i.e., the textile undertakings, management of which had been taken over by the Central Government under the Act 1983. The First Schedule included Poddar Mills at Sl. No.9 and Poddar Mills had been paid compensation to the tune of Rs.7,46,30,000. Nothing has been paid so far as respondent No.1 is concerned. Sub-section (6) of Section 4 of the Act 1995 provides that any suit, appeal or other proceedings of whatever nature in relation to any property which had vested in the Central Government under Section 3 on the appointed day, instituted or preferred by or against the textile company is pending, the same shall not abate or adversely affect the rights of the parties by reason of the transfer of textile undertaking. Thus, the commencement of the Act 1995 does not really affect even the pending cases. In view thereof, it is beyond our imagination as how the Act 1995 would prejudice the cause of the respondents in the proceedings which arose subsequent to the commencement of thisis not permissible for the appellant to canvass that the Central Government has any concern so far as the tenancy rights are concerned. Right vested in the Central Government stood transferred and vested in the appellant. Both are separate legal entities and are not synonymous. The appellant being neither the government nor government department cannot agitate that as it has been substituted in place of the Central Government, and acts merely as an agent of the Central Government, thus protection of the Act 1999 is available to it. Appellant cannot be permitted to say that though all the rights vested in it but it merely remained the agent of the Central Government. Acceptance of such a submission would require interpreting the expression `vesting as holding on behalf of some other person. Such a meaning cannot be given to the expression `vesting.It is a settled legal proposition that an agent cannot be sued where the principal is known. In the instant case, the appellant has not taken plea before either of the courts below. In view of the provisions of Order VIII Rule 2 CPC, the appellant was under an obligation to take a specific plea to show that the suit was not maintainable which it failed to do so. The vague plea to the extent that the suit was bad for non-joinder and, thus, was not maintainable, did not meet the requirement of law. The appellant ought to have taken a plea in the written statement that it was merely an `agent of the Central Government, thus the suit against it was not maintainable. More so, whether A is an agent of B is a question of fact and has to be properly pleaded and proved by adducing evidence. The appellant miserably failed to take the required pleadings for the purpose.30. Thus, in view of the above, we reach the inescapable conclusion that appellant is not entitled for exemption under Section 3(1)(a) or 3(1)(b) of the Act 1999. Nor can it claim the status of an `agent of the Central Government. Submissions advanced on behalf of the appellant are preposterous. Facts and circumstances of the case do not warrant review of the impugnedconsidering the nature of business of the appellant, it is in the interest of justice that appellant be given time upto 31.12.2013, to vacate the premises. Appellant shall file a usual undertaking within four weeks from today to hand over peaceful and vacant possession to the respondent No.1.