Bombay High Court
Hemal Shah S/O Laxmichand Shah vs Meena W/O Bhimashankar Nagmoti on 10 February, 2021
Bench: C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Sneha N.
Chavan CIVIL APPLICATION NO.733 OF 2019
Digitally signed by IN
Sneha N. Chavan
Date: 2021.02.11 SECOND APPEAL NO.846 OF 2019
14:20:21 +0530
Hemal Shah S/o Laxmichand Shah & Ors. ..Applicants
Vs.
Meena W/o Bhimashankar Nagmoti ..Respondent
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Mr. Darshit Jain i/b Mr. Varun Mamniya for the Applicants.
Mr. Nilesh Wable for the Respondent.
----
CORAM : C.V. BHADANG, J.
DATE : 10th FEBRUARY 2021
P.C.
1. There was a parent agreement dated 23.11.2012 executed
between the parties, by which the suit property was agreed to be
given to the applicants (original Plaintiffs) on leave and licence basis
for a period of 11 years on an agreed monthly licence fee of
Rs.40,000/- with appropriate escalations. The agreement
contemplated execution of separate leave and licence agreements
for a period of 33 months each.
2. Accordingly, the first leave and licence agreement was
executed on 26.11.2012 after which, according to the applicants,
there was refusal to execute a leave and licence agreement as
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contemplated in the parent agreement. This led the
applicants/appellants to file a suit for specific performance of the
agreement dated 23.11.2012. The specific performance has been
refused by the courts below inter alia on the ground that the
agreement dated 23.11.2012 is insufficiently stamped and is an
unregistered document. It has also been held that the said
agreement was never acted upon.
3. The learned counsel for the applicants pointed out that the
agreement is executed on a stamp paper of Rs.500/-. The learned
counsel placing reliance on Section 17 of the Registration Act,
submitted that the said agreement is not a compulsorily registrable
document. It is submitted that the applicants have paid the security
amount of Rs.5,00,000/- and even the leave and licence agreement
was executed and registered on 26.11.2012. Thus, according to the
learned counsel for the applicants, there is sufficient material to
show that the parent agreement was acted upon.
4. The learned counsel for the respondent supported the
impugned judgment. It is submitted that the leave and licence
agreement dated 26.11.2012 specifically mentions that there will
not be any further renewal and applicants have undertaken to
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handover vacant and peaceful possession at the end of 33 months,
after removal of the furnitures and fixtures. He, therefore,
submitted that agreement dated 26.11.2012 was executed in
substitution of the parent agreement dated 23.11.2012. He,
therefore, submitted that specific performance was rightly refused.
5. I have considered the circumstances and the submissions
made. The second appeals are admitted. Insofar as the issue of stay
of decree of possession obtained by the respondent, is concerned,
the learned counsel for the applicants on instructions states that the
applicants shall continue to deposit the licence fees/occupation
charges at the rate of Rs.40,000/- per month during the pendency of
the appeals. The statement so made is accepted.
6. In the result, the following order is passed:
(i) The applications are allowed.
(ii) There shall be interim stay of the delivery of the
possession, subject to the appellants/applicants depositing or paying
the respondent, the arrears of licence fees/occupation charges up to
28.02.2021 within four weeks from today.
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(iii) The appellants/applicants, shall continue to pay/deposit
the monthly licence fee, on and from March, 2021 on/or before 5 th
of each English calendar month.
(iv) The appellants/applicants shall not part with possession
of the suit property and shall not create any third party interest in
the same during the pendency of the appeal.
(v) In the event of default of payment/deposit in the matter
of any two consecutive monthly occupation charges, the interim
relief shall stand vacated without reference to the court.
(vi) Liberty to the parties to apply for modification, if any.
C.V. BHADANG, J.
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