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2012 DIGILAW 77 (BOM)

Kamalam P. Thilakan v. Vithala Narayana Shetty

2012-01-12

ANOOP V.MOHTA, D.K.DESHMUKH

body2012
Judgment : ORAL JUDGMENT: D.K. DESHMUKH, J. 1. By this Appeal, the Appellants challenge the judgment and decree dated 12 December 2008 passed by a learned Single Judge of this Court in Suit No.3275/1987. That Suit was filed by the present Appellant claiming that he is tenant and owner of business of a hotel carried on in the name of “Hotel Park View” situated at shop no.5, Room no.4/1, Ground floor, Kantharia Mansion, Plot NO.105C, Govandi Road, Chembur, Bombay. According to the Plaintiff, the business that was run by the Plaintiff was given on a conducting basis to the Defendant for the period which was to end on 15.08.1987. Even after expiry of that period, the Defendant did not hand over the business back. Therefore, Suit was filed. Substantial final reliefs that were claimed in the Suit were by prayers (a) to (e). It read as under: “(a) that it be declared that the said Agreement dated 16th August, 1984, being Exhibit ‘A’ hereto stands expired by efflux of time w.e.f. 15th August, 1987, and the run and conduct of the said hotel business of “Hotel Park View” together with the use of furniture, fixtures, appliances, stock-in-trade etc., lying therein, by the Defendant thereof is illegal, unauthorised and amounts to acts of trespass on the Plaintiff’s right, title and interest in the said hotel business as well as the furnitures, fixtures, appliances, stock-in-trade etc., and the Defendant is bound in law to hand back the said hotel business together with the said furnitures, fixtures, appliances etc., to the Plaintiff forthwith. (b) that it bedeclared that the said declaration and/or affidavit dated 21st September, 1984, is sham, false, bogus and got up document and therefore, not binding upon the Plaintiff and the same is liable to be cancelled, or quashed or declared null and void. (c) that the Defendant be ordered and directed by a mandatory order and injunction of this Hon’ble Court to hand back to the Plaintiff together with the furnitures, fixtures, appliances, stock-in-trade etc., lying thereof which was entrusted by the Plaintiff to the Defendant for the purpose of conducting the said hotel business under terms and conditions of the said Agreement dated 16th August, 1984. (d) that the Defendant be ordered and decreed to pay to the Plaintiff Rs.43,500/by way of liquidated damages as per the particular annexed hereto and marked Exhibit “E” thereof at the rate of Rs.500/per day from 16.8.1987 till the date of filing of the suit, and thereafter at the rate of Rs.500/per day till the Defendant hands back the conduct of the said hotel business together with the furnitures and fixtures, stock-in-trade, appliances lying therein to the Plaintiff. (e) That this Hon'ble Court be pleased to issue a permanent order of injunction restraining the Defendant by himself, his servants and agents from in any manner dealing with, disposing off, alienating and/or encumbering and/or creating any third party right in the said hotel business i.e. Hotel Park View and/or conducting the same together with the furnitures, fixtures, appliances, stock-in-trade etc., lying therein. (f) that pending the hearing and final disposal of the suit the Defendant by himself, his servants and agents be restrained by an order and injunction from in any manner dealing with, disposing off, alienating, encumbering and/or creating any third party rights and/or inducting any third party in the said hotel business viz. “Hotel Park View” together with the furniture, fixtures, appliances, stock-in-trade etc. (g) that pending the hearing and final disposal of the suit Court Receiver, High Court, Bombay or some other fit and proper person be appointed Receiver of the said hotel business with all powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908.” 2. The learned Single judge of this Court as observed has decided the Suit by his judgment and decree dated 12 December 2008. The learned Single Judge decreed the Suit in the following terms: 33(1) The Defendant shall hand over possession of the suit premises together with furniture and fixtures mentioned in the list annexed to the Agreement dated 16th August 1984 to the Plaintiff failing which the Defendant shall deposit the present market value of the suit premises in this Court. Upon such deposit the Plaintiff shall have his tenancy rights assigned to the Defendant. 33(2) The Plaintiff shall be entitled to withdraw the amount of the market value deposited by the Defendant so soon as he obtains assignment of the tenancy rights in the name of the Defendant by way of a rent receipt issued by the landlord in the Defendant’s name. 33(2) The Plaintiff shall be entitled to withdraw the amount of the market value deposited by the Defendant so soon as he obtains assignment of the tenancy rights in the name of the Defendant by way of a rent receipt issued by the landlord in the Defendant’s name. 33(3) The Defendant shall pay liquidated damages at the agreed rate of Rs.500/per day until he hands over possession of the suit premises to the Plaintiff or deposits the amount representing the market value of the suit premises in this Court. 33(4) The Commissioner for taking accounts shall determine the market value of the suit premises taking into account similar transactions in the locality as also the prices shown in the ready reckoner of 2008 issued by the Government in the absence of an agreement as to the market value between the parties. 33(5) The Defendant shall not create any 3rd party rights or otherwise sell, encumber, transfer or dispose off the suit premises until he hands over possession or deposits the amount representing the market value of the suit premises as directed above. 33(6) There shall be no order as to costs. 33(7) Both the parties shall be entitled to the return of the original documents produced by them.” 3. The Defendant has not filed any Appeal against this decree nor has he filed any cross-objection. It is only the Plaintiff who has filed the present Appeal. In the present Appeal, the Plaintiff challenges only following portion of paragraph 33(1) of the Order of the learned Single Judge, “failing which the Defendant shall deposit the present market value of the suit premises in this Court. Upon such deposit, the Plaintiff shall have his tenancy rights assigned to the Defendant”. The submission of the learned counsel appearing for the Plaintiff is that this is a decree passed by the learned Single Judge in favour of the Defendant granting a right to the Defendant to get assignment of the tenancy rights in his favour on deposit of the market value. According to the learned counsel appearing for the Plaintiff/Appellant, this decree has been passed by the learned Single Judge without there being any counter claim filed by the Defendant and without the landlord of the premises being a party to the Suit. According to the learned counsel appearing for the Plaintiff/Appellant, this decree has been passed by the learned Single Judge without there being any counter claim filed by the Defendant and without the landlord of the premises being a party to the Suit. The Plaintiff also challenges direction issued by the learned Judge by paragraph 33(2) which is consequential to the above-quoted portion from para 33(1) of the order. 4. We have heard the learned counsel appearing for the Respondent. He submits that the learned Single Judge has rightly made the order for transfer of tenancy rights in favour of the Defendant. The learned counsel also submitted that really speaking the entire decree passed by the learned Judge is without jurisdiction, because it is filed in a Suit between a licensor and licensee. It is also submitted on behalf of the Plaintiff that by clause 33(3), the learned Judge has directed payment of liquidated damages at the rate of Rs. 500/per day till the Defendant hands out possession to the Plaintiff. However, the learned Single Judge has not specified any date from which the payment is to be made. The learned counsel appearing for the Plaintiff fairly stated that after the decree was passed, the Defendant is paying this amount from the date of the decree. The learned counsel submits that the Plaintiff would be entitled to the amount from 16.08.1987 because as per the agreement between the parties, the arrangement will come to an end on 15.08.1987. According to the learned counsel, at least from the date of institution of the suit namely 10.11.1987 the Defendant should be made liable to pay the amount. 5. In our opinion, in the absence of any counter claim being filed by the Defendant, really speaking the learned Single Judge could not have made any decree in favour of the Defendant. That will be contrary to the provisions of the Civil Procedure Code and the principles of natural justice. In any case, no direction for assignment of tenancy rights of the premises in favour of the Defendant could have been made in the absence of the landlord, because according to the provisions of the Rent Act, no assignment of tenancy in any premises is possible without the consent of the landlord. In our opinion, therefore, the above-quoted portion from para 33(1) of the order will have to be set aside. In our opinion, therefore, the above-quoted portion from para 33(1) of the order will have to be set aside. It is accordingly set aside. 6. So far as para 33(2) of the order is concerned, it is consequential to the above-quoted para 33(1). Therefore, it also stands set aside. Same is the position with regard to paragraph 33(4). Therefore, paragraphs 33(2) and 33(4) are also set aside. 7. So far as the modification sought in paragraph 33(3) is concerned, in our opinion, it is true that on expiry of the period of the agreement on 15.08.1987 the Defendant would be liable to pay the liquidated damages. However, considering that the Suit was immediately filed and in that Suit, Receiver was appointed and Defendant was appointed as an agent of the Receiver and in that capacity, he has been depositing Rs.20,000/as royalty which the Plaintiff has been withdrawing. In our opinion, no modification in paragraph 33(3) is called for. 8. In the result, therefore, the Appeal succeeds and is allowed. The following portion from para 33(1) i.e. “failing which the Defendant shall deposit the present market value of the suit premises in this Court. Upon such deposit, the Plaintiff shall have his tenancy rights assigned to the Defendant”, is set aside. Paras 33(2) and 33(4) are also set aside. 9. The Appeal is disposed of accordingly in the above terms. There shall be no order as to costs.