Bombay High Court
Plaza' vs Samartha Development ... on 22 November, 2010
Bench: R.Y. Ganoo
1 S.5244.99Judg..sxw
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 5244 OF 1999
BPM Industries Limited }
(Formerly known as Bharat Pulverizing }
Mills Ltd.), a Company registered under }
the Provisions of Companies Act, 1956 }
having its registered office at 'Sarjan }
Plaza', 100 Dr. A.B. Road, Worli, }
Mumbai - 400 018 and administrative }
office at Shriniketan, 5th floor,
14 Queens Road, Mumbai - 400 002.
}
} ... Plaintiffs.
V/s.
Samartha Development Corporation, }
a partnership firm registered under }
the Indian Partnership Act, 1932 }
having its office at 'Suyash' Gokhale }
Road (North), Dadar, }
Mumbai - 400 028. } ... Defendants.
Mr. Shyam Mehta with Zal Andhyarujina i/b. Yasmin Bhansali &
Co. for the Plaintiffs.
Mr. V.A. Thorat, Sr. Counsel with Vaibhav Sugdare, Rohan
Rajadhyaksha and Vinay Bandiwadekar i/b. Mahimtura and Co.
for the Defendants.
CORAM : R.Y. GANOO, J.
DATED : 22nd NOVEMBER 2010.
2 S.5244.99Judg..sxw
ORAL JUDGMENT :-
The Plaintiffs instituted this Suit on 27th August 1999 for
following reliefs :-
(a) That this Hon'ble Court be pleased to declare that
the Indenture of Lease dated 6th May 1949 in
respect of the suit property, whereof the Plaintiffs
are the lessees of the said property, has stood
renewed with effect from 1st May 1999 for a period
of 50 years as provided in the said Indenture of
Lease dated 6th May 1949 and as modified /
substituted subsequently by Agreement dated 31st
August, 1955 and reiterated in the Deed of
Conveyance dated 25th November, 1993;
(b) That this Hon'ble Court be pleased to order and
decree the Defendants to specifically perform the
contract for renewal of the Lease contained in the
Indenture of Lease dated 6th May 1949, the
Agreement dated 31st August 1955 which have
been approved, adopted and binding on the
Defendants by virtue of Deed of Conveyance dated
25th November 1993, and execute the necessary
renewal and do all other acts and things necessary
for that purpose;
3 S.5244.99Judg..sxw
(c) That this Hon'ble Court be pleased to declare that
the terms and conditions of the Indenture of Lease
dated 6th May 1949 and the Agreement dated 31st
August 1955 are binding on the Defendants and
they are bound to specifically perform the terms of
the same including the renewal with effect from 1st
May 1999 for a period of 50 years.
2. The Defendants herein filed their written statement and
in the written statement the Defendants have raised the point
as regards the jurisdiction of this Court. On account of this, it
was felt necessary to frame an issue of jurisdiction and
accordingly, on 24th September 2010, following issues were
framed :-
(i) Whether this Court has jurisdiction to try and
entertain the present Suit ?
(ii) What Order ?
My answer to these issues are as under :-
Issue No. (i) - In the negative.
Issue No. (ii) - As per the final order.
4 S.5244.99Judg..sxw
3. Learned Counsels on both sides indicated to the Court
that no oral evidence is required to be furnished and Court
can decide the issues on the basis of the record. On account
of this, it became necessary for the Court to hear arguments
on both sides and the same was done.
4. For deciding the aforesaid issues, few facts are required
to be stated. By a lease deed dated 6th May 1949, N.R. Parekh
and Others executed a lease for a period of 50 years in favour
of Aruna Chemicals Colour and Industrial Products Co. Ltd.
with effect from 1st May 1949. Said Company went into
liquidation. The liquidator was appointed in respect of the
said Aruna Chemicals and its properties including property
mentioned in para 3 of plaint i.e. the Suit property. The
Liquidator by document dated 19th January 1954 assigned the
lease in favour of Shamjibhai for unexpired period. Said
Shamjihbhai, by document dated 7th July 1954 assigned the
lease in favour of Bharat Pulverizing Mills Ltd. for the
unexpired period. On account of change of name, the Suit
came to be filed in the name of B.P.M. Industries Ltd. By
document dated 31st August 1955, N.R. Parekh & Others i.e.
landlords executed an agreement with Bharat Pulverizing Mills
5 S.5244.99Judg..sxw
Ltd. and modified the terms of the agreement. On 25th
November 1993, executrix of Will of Mrs. N.R. Parekh and
other owners executed a sale deed of the Suit property in
favour of the Defendants.
5. In the circumstances stated aforesaid, the Plaintiffs were
enjoying Suit property as lessee and the Defendants were the
lessor.
6.
The lease deed dated 6th May 1949 was to come to an
end on 30th April 1999 by efflux of time. It has been the
contention of the Plaintiffs that on account of the assignment
of the lease in favour of the Plaintiffs for the unexpired period
as mentioned and on the basis of document dated 31.8.1955
between the Plaintiffs and earlier owners, the Plaintiffs were
entitled to renewal of lease for 50 years with effect from
1.5.1999. It is admitted by the Plaintiffs that by notice dated
23rd March 1995, the Defendants lessor called upon the
Plaintiffs to vacate the suit property as the Defendants
required the property for their use. It is also admitted by the
Plaintiffs that the Defendants instituted Suit against the
6 S.5244.99Judg..sxw
Plaintiffs under Section 13(1)(k) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (hereinafter
referred as the Bombay Rent Act) being RAE & R Suit No.
770/1421/1998 for recovery of possession of the Suit property
on the ground that the Defendants required the Suit premises
by way of bonafide requirement. In the course of arguments,
it was informed to the Court by the learned Counsel for the
Plaintiffs that the Defendants have instituted proceedings in
the Court of Small Causes being Ten. R Suit No.429/452/2001
in accordance with the provisions of the Maharashtra Rent
Control Act, 1999 by taking the advantage of provisions of
Section 3(1)(b) of the Maharashtra Rent Control Act, 1999
(hereinafter referred to as the Rent Control Act). The Court is
informed that both these proceedings filed by the Defendants
against the Plaintiffs for recovery of possession are pending.
7. At the outset it is required to be mentioned that as of
today, the question whether paid up share capital of the
Plaintiffs - Company is more than Rs.1.00 crore is yet not
finalized and there is no finding given by any Court to that
extent.
7 S.5244.99Judg..sxw
8. Looking to the nature of objection raised as regards the
jurisdiction of this Court, it became necessary for this Court to
ascertain the precise nature of the reliefs sought in this Suit.
9. Learned Counsel for the Plaintiffs had taken me through
the various documents which are referred to above. Learned
Counsel for the Plaintiffs had contended that if one considers
the plaint as a whole, the Suit is for specific performance of
the agreement based on the renewal clause appearing in the
lease deed dated 6.5.1949 and agreement dated 31.8.1955
by which the Plaintiffs were entitled to get the lease renewed
for a further period of 50 years from the day when the lease
was to expired i.e. on 30th April 1999. Learned Counsel
appearing on behalf of the Plaintiffs had, therefore, submitted
that the Court should appreciate the text of the plaint, the
nature of the relief sought and hold that this Court has
jurisdiction.
10. Learned Senior Counsel Mr. Thorat appearing on behalf
of the Defendants had advanced his submissions in support of
the stand taken by the Defendants that this Court has no
jurisdiction to try and entertain the present Suit. Learned
8 S.5244.99Judg..sxw
Senior Counsel Mr. Thorat appearing on behalf of the
Defendants had submitted that the averments in the plaint
will decide the jurisdiction of the Court and the Court has to
consider the pith and substance of the plaint, consider the
nature of the dispute and then answer the question of the
jurisdiction. Learned Senior Counsel Mr. Thorat appearing for
the Defendants had drawn my attention to the Judgment in
the case of Nagin Mansukhlal Dagli V/s. Haribhai
Manibhai Patel reported in AIR (1980) Bombay 123
where the learned Division Bench of this Court had indicated
that even if in a given case the relationship between parties
as it originated for the first time has come to an end, the
parties shall still be referred to as standing in those
relationship i.e. a lessor, landlord and tenant etc.. Learned
Senior Counsel Mr. Thorat had even otherwise submitted that
looking to the averments in the plaint, the Plaintiffs are
interested in styling them as tenant in respect of the Suit
property and the Defendants by treating them as landlord. He
had, therefore, submitted that the Plaintiffs can be referred to
as tenant and the Defendants as landlord.
9 S.5244.99Judg..sxw
11. Learned Senior Counsel Mr. Thorat appearing on behalf
of the Defendants had, thereafter, taken me through the
provisions of Section 41 of the Presidency Small Cause Courts
Act (for short said Act) and had submitted that the Court of
Small Causes shall have jurisdiction to entertain and try a Suit
or a proceeding if it is between the landlord and tenant and it
relates to recovery of possession of any of the property
situated in Greater Bombay. Learned Senior Counsel Mr.
Thorat has submitted that on a plain reading of the plaint the
Suit should be treated as between landlord and tenant and it
relates to recovery of possession in regard to the Suit
property. He therefore submitted that Small Causes Court will
have jurisdiction to try this Suit and it should have been filed
in the Court of Small Causes Court at Bombay.
12. Learned Senior Counsel Mr. Thorat in support of above
submission relied upon Judgment in the case of Mansukhlal
Dhanraj Jain & Ors. V/s. Eknath Vithal Ogale reported in
(1995) 2 Supreme Court Cases 665. Learned Senior
Counsel Mr. Thorat had taken me to the entire Judgment and
submitted that on a reading of this Judgment as a whole and
10 S.5244.99Judg..sxw
applying the same to the facts of this Court and considering
the reliefs sought by the Plaintiffs, the Court of Small Causes
at Bombay shall have jurisdiction to try this Suit.
13. Learned Senior Counsel Mr. Thorat had submitted that by
prayer clause (a) the Plaintiffs are claiming to be tenants of
Suit property and they want that the said tenancy should be
declared as valid and subsisting for a period of 50 years w.e.f.
1.5.1999 on the basis of lease deed dated 6.4.1949 and deed
dated 31.8.1955. According to Mr. Thorat, prayer clauses (b)
and (c) are in the nature of consequential reliefs keeping in
view prayer clause (a).
14. Learned Senior Counsel Mr. Thorat had pointed out to me
following points/facts :-
(i) The Defendants had issued notice to the Plaintiffs
on 23.3.1995 and had called upon the Plaintiffs to vacate
the Suit premises.
(ii) The Defendants had instituted Suit under Bombay
Rent Act under Section 13(k) for recovery of possession
in the Court of Small Causes at Bombay.
11 S.5244.99Judg..sxw
(iii) The Defendants had instituted application for
recovery of possession in the Court of Small Causes at
Bombay under Rent Control Act.
Learned Senior Counsel Mr. Thorat pointed out that lease
came to an end on 30.4.1999 and this Suit was filed on
27.8.1999 for reliefs as per prayer clauses (a) to (c). Learned
Senior Counsel Mr. Thorat submitted that by this Suit the
Plaintiffs want that they should be treated as tenant and that
they should not be evicted from Suit property. It was
submitted by Mr. Thorat that looking to above points, the Suit
should be treated as Suit by tenant against landlord for
protection of possession of the Plaintiffs as regards the Suit
property and as such, the Suit would be relating to recovery of
Suit property as per the judgment in the case of Mansukhlal D.
Jain. It was submitted that on behalf of the Defendants that
based on above points, the Small Causes Court at Bombay
shall have jurisdiction to try this Suit.
15. Learned Counsel Mr. Shyam Mehta appearing on behalf
of the Plaintiffs had submitted that on a plain reading of the
plaint, the Suit is for enforcement of the clause as regards
renewal of the lease and therefore, the Suit will have to be
12 S.5244.99Judg..sxw
treated as a Suit for specific performance of the lease deed
dated 6th May 1949 coupled with the renewal clause reflected
in agreement dated 31st August 1955 by which it was agreed
that the lease shall be renewed for a period of 50 years. He
had, therefore, submitted that it is the Civil Court shall have
jurisdiction to try and entertain the present Suit. In reply to
the arguments advanced by the learned Counsel for the
Defendants that the Court of Small Causes shall have
jurisdiction, learned Counsel Mr. Mehta appearing on behalf of
the Plaintiffs had submitted that Section 18 and Section 19 of
the Presidency Small Cause Courts Act create a bar as regards
entertaining Suit for specific performance of the agreement.
He had submitted that on account of said provisions, small
Causes Court will not have jurisdiction.
16. Learned Counsel Mr. Mehta appearing on behalf of the
Plaintiffs had submitted that this Suit does not relate to
recovery of possession and as such, Small Cause Court will
not have jurisdiction to try this Suit even if the first
requirement namely relationship between parties as tenant
and landlord is fulfilled. He tried to bring about a distinction
13 S.5244.99Judg..sxw
between a term viz. "Suit relating to recovery of possession"
and "a Suit relating to possession". Learned Counsel Mr.
Mehta appearing on behalf of the Plaintiffs had relied upon the
Judgment in the case of Navyug Co-op. Housing Society
Ltd. & Anr. V/s. Vile Parle Kelavani Mandal & Anr.
Reported in 2005(3) Bom.C.R. 579 and had submitted that
the present Suit filed by the Plaintiffs at the best can be
treated as a Suit relating to possession and as such, theSuit
should be exclusively decided by the Civil Court.
Counsel Mr. Mehta submitted that the Small Causes Court
Learned
shall have jurisdiction to try and entertain the Suit if the
requirement under Section 41 of the Presidency Small Causes
Court Act are fulfilled. He submitted that in the present case
the two requirements are not fulfilled. Learned Counsel Mr.
Shyam Mehta had submitted that the present Suit does not
fall within the ambit of Section 41 of said Act and this Court
will have jurisdiction to decide the Suit.
17. Learned Senior Counsel Mr. Thorat appearing on behalf
of the Defendants had placed reliance on the Judgment in the
case of ING Vysya Bank Limited V/s. Modern India
Limited & Anr. reported in 2008(2) Bom. C.R. 255. Mr.
14 S.5244.99Judg..sxw
Thorat had taken me through the said Judgment and
submitted that if the Suit instituted by the Plaintiffs falls within
the terminology namely Suits relating to recovery of
possession, then the embargo created by Section 18 and
Section 19 of the Presidency Small Cause Courts Act should
not be attracted and that the Small Causes Court can
entertain the Suit even if the Suit is for specific performance
of contract. He had drawn my attention to the facts
appearing in the case of ING Vysya Bank Ltd. and has
submitted that in the said case the Court came to be
conclusion that the proceedings initiated by the Petitioners
were in the nature of the Suit relating to recovery of the
possession and therefore, the Small Causes Court did have
the jurisdiction.
18. Learned Senior Counsel Mr. Thorat appearing on behalf
of the Defendants had relied upon the Judgment in the case of
Tejbai Tejshi Dedhia & Ors. V/s. Central Bank of India
reported in 2007(6) Bom. C.R. 60 to contend that a Suit
for specific performance of agreement for construction of a
building on the old premises was held to be a Suit which can
be entertained by the Court of Small Causes. According to
15 S.5244.99Judg..sxw
him, the observations made in the said Judgment would help
the Defendants by which the Defendants are contending that
the Small Causes Court at Bombay shall have jurisdiction to
try and entertain the present Suit. Learned Senior Counsel Mr.
Thorat had, therefore, reiterated his submission as regards the
nature of the Suit and that Court of Small Causes shall have
jurisdiction to try and entertain the present Suit.
19. I have considered
ig the rival submissions and the
Judgments relied upon by the respective parties. In order to
resolve the controversy raised in the present Suit as regards
jurisdiction, it is necessary first to ascertain the nature of the
Suit filed by the Plaintiffs. The Plaintiffs have claimed in the
plaint that on account of lease deed dated 6th May 1949 and
on account of agreement dated 31st August 1955 executed by
the earlier landlord in favour of the Plaintiffs, the lease deed
which was valid for 50 years was agreed to be renewed and
the Plaintiffs are claiming that the lease stood renewed. The
Plaintiffs have referred to the various documents which came
to be entered into from time to time and a close perusal of the
plaint would go to show that it is the stand of the Plaintiffs
that the lease which expired on 30.4.1999 stood renewed in
16 S.5244.99Judg..sxw
favour of the Plaintiffs. I therefore hold that the Plaintiffs are
seeking a declaration that they are the tenant/lessee in
respect of the Suit property for a period of 50 years from the
time when the lease ought to have been renewed i.e. from 1 st
May 1999. This observation is based on prayer clause (a) of
plaint. So far as the terms and conditions as to how they
would enjoy tenancy, they are referring to the lease dated 6th
May 1949 and the document dated 31st August 1995 and the
deed of conveyance dated 25th November 1993. The Plaintiffs
want that the terms and conditions mentioned in those
documents be considered and status of the Plaintiffs as a
tenant be confirmed in regard to Suit property. That is to say
the present Suit is a declaratory Suit between the landlord
and a tenant.
20. It is true that by prayer clause (b) the Plaintiffs have
sought specific performance of contract of renewal of lease
contending lease dated 6th May 1949 coupled with agreement
dated 31st August 1955 and deed of conveyance dated 25th
November 1993. A true reading of this prayer would clearly
go to show that the Plaintiffs want that the Defendants should
execute a lease deed in favour of the Plaintiffs for a further
17 S.5244.99Judg..sxw
period of 50 years in terms of the three documents referred to
once relief of declaration as tenant is granted. If relief in
terms of prayer clause (a) is granted to the Plaintiffs, then,
execution of a document in favour of the Plaintiffs by the
Defendants is a matter of formality and therefore, the relief in
terms of prayer clause (b) will have to be treated as a
consequential relief. The Plaintiffs have by prayer clause (c)
want to enforce the lease deed dated 6th May 1949 and
agreement dated 31st August 1955 and want that the
Defendants should acknowledge the Plaintiffs as their tenant.
Taking these three prayers together, the whole plaint can be
termed as a Suit for a declaration that the Plaintiffs are tenant
in respect of the Suit property on terms and conditions set out
in lease deed dated 6th May 1949 coupled with agreement
dated 31st August 1955 and document dated 25th November
1993. In my view, the argument advanced by the learned
Counsel for the Plaintiffs that the present Suit is for specific
performance of the three agreements cannot be accepted.
The present Suit for reasons mentioned aforesaid is a Suit for
declaration that the Plaintiffs are tenant in respect of the Suit
property.
18 S.5244.99Judg..sxw
21. Having observed that the Suit is not for the specific
performance of an agreement, there is no question of Section
18 and Section 19 of the Presidency Small Cause Courts Act
getting attracted to the facts of this case.
22. Before I proceed to deal with the question whether the
Suit is relating to recovery of possession, few facts appearing
on the basis of record are required to be stated. Original lease
came to an end on 30th April 1999. It is true that the Plaintiffs
had by notice dated 8.2.1999 had called upon the Defendants
to renew the lease in terms of the various documents
executed by and between the parties as mentioned aforesaid.
The plaint also narrates that by letter dated 23rd March 1995,
the Defendants had called upon the Plaintiffs to vacate the
suit premises. This will mean that way back in 1995 itself i.e.
four years prior to expiry of the lease, the Defendants had
indicated that they do not want the Plaintiffs to remain in the
Suit property and they should vacate the Suit property. It is
pertinent to note that the Defendants had in their capacity as
landlord instituted Suit No.RAE & R No.770/1421/1998 against
the Plaintiffs for recovery of possession under Section 13(1)(K)
of the Bombay Rent Act on the ground that the Defendants
19 S.5244.99Judg..sxw
bonafide required the Suit premises. Looking to the conduct
of the Defendants, the Plaintiffs realized that the Defendants
are intending to remove the Plaintiffs from the Suit property.
The Plaintiffs did not take any step till 30th April 1999 for
institution of the Suit i.e. during the time when the lease was
subsisting. It is only after the lease came to an end, the
Plaintiffs instituted this Suit for a declaration and for the other
reliefs as mentioned in the earlier para of this Judgment.
Across the bar it was argued by the learned Senior Counsel for
the Defendants that the paid up share capital of the Plaintiffs
is more than Rs.1.00 crore and the Plaintiffs had no right to
continue in the premises as their protection under the
provisions of Rent Control Act came to an end which
protection was earlier enjoyed by them in their capacity as a
tenant as per the provisions of Bombay Rent Act. It is true
that the proceedings for recovery of possession came to be
filed in 2001 by taking the benefit of provisions of Section 3(1)
(b) of the Rent Control Act. There is no reference to it in the
plaint as the said proceedings were filed after the filing of this
Suit. The Plaintiffs did not take any steps to amend the plaint
and mention factual aspect as regards institution of
20 S.5244.99Judg..sxw
proceedings for recovery of possession which came to be filed
in the year 2001 under the Rent Control Act.
23. A plain reading of the various facts which I have
disclosed above coupled with the fact that the Suit has been
instituted to seek a declaration that the Plaintiffs are tenant in
respect of the Suit property of the Defendants, it is clear that
the Plaintiffs wish to protect their possession in regard to the
Suit property. If the relief which is sought by the Plaintiffs in
terms of prayer clause (a) is granted, the Plaintiffs would be
able to style themselves as tenant in respect of the Suit
property and would be able to draw benefit arising out of the
said situation. For these reasons, I am inclined to observe
that the present Suit will have to be treated as a Suit to
protect possession of the Suit property.
24. After having recorded findings that the present Suit is
filed to protect possession in regard to the Suit property by
the Plaintiffs, the question is whether the Civil Court will have
jurisdiction to try and entertain the present Suit or it is the
Court of Small Causes shall have jurisdiction to try and
entertain the present Suit.
21 S.5244.99Judg..sxw
25. In connection with this, the reference to the Judgment in
the case of Mansukhlal D. Jain (supra), is necessary. My
attention was drawn by the learned Senior Counsel Mr. Thorat
appearing for the Defendants to the said Judgment and in
particular paragraphs 16 to 21 of the said Judgment. I have
considered the Judgment in the case of Mansukhlal D. Jain
(supra) and applying the said Judgment to the facts of this
case, I am inclined to observe that once it is observed that the
present Suit is filed to protect possession of the Plaintiffs in
regard to the Suit property coupled with the fact that the
Plaintiffs want a declaration that they are the tenant in
respect of the Suit property, the Suit shall fall within the ambit
of the term "Suit relating to recovery of possession" and that
is how the Court of Small Causes shall have jurisdiction to try
and entertain the present Suit. The argument advanced by
the learned Counsel for the Plaintiffs that the Suit is for
specific performance of the agreement to renew the lease
cannot be accepted.
26. The argument advanced by the learned Counsel for the
Plaintiffs that at the most the Suit may relate to possession of
22 S.5244.99Judg..sxw
the property also cannot be accepted. Based on contents of
paragraphs 16 to 21 in the case of Mansukhlal D. Jain
(supra) and lthe facts which are stated above viz. (a)
expiration of the lease on 30th April 1999, (b) institution of the
Suit by the Defendants for the recovery of possession and (c)
institution of the Suit for declaration by the Plaintiffs, after the
lease has come to an end clearly show that the Suit relates to
recovery of possession.
27.
For the reasons mentioned aforesaid, I hold that the Suit
is between tenant and landlord as per the judgment in the
case of Nagin Mansukhlal Dagli (supra) and it relates to
recovery of possession. Hence, the two requirements of
Section 41 of the Presidency Small Cause Courts Act are
fulfilled. The Small Causes Court shall have jurisdiction to try
this Suit. Consequently, stand of the Plaintiffs that this Court
shall have jurisdiction cannot be accepted.
28. In view of the above, Issue No.1 is answered in the
negative that is to say this Court has no jurisdiction to try and
entertain the present Suit.
23 S.5244.99Judg..sxw
29. Since Issue No.1 is answered in the negative, the plaint
will have to be returned to the Plaintiffs for filing it to the
appropriate Court and Issue No.2 is answered accordingly.
30. In view of the findings given on Issue Nos. 1 and 2,
following order is passed :-
(i) This Court has no jurisdiction to try and entertain
the present Suit. It is hereby ordered that the
plaint be returned to the Plaintiffs for filing it to
the appropriate Court. 11th January 2011 is the
date fixed for returning the plaint to the Plaintiffs.
(ii) Office shall accordingly return the plaint to the
Plaintiffs on 11th January 2011.
(R.Y. GANOO, J.)
