Nikhilesh Keshrichand Jhaveri ... vs M.S Johnson Dye Works Pvt. Ltd. And ...
2022 Latest Caselaw 12927 Bom

                                                              2&3-WP-12584-22.doc

Sharayu Khot.
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 12584 OF 2022


      Mr. Nikhilesh Keshrichand Jhaveri & Ors.           ...Petitioners

                Versus

      M/s. Johnson Dye Works Private Limited &
      Ors.                                               ...Respondents

                                        ----------
      Mr. Gautam Ankhad a/w Mr. Vishal Narichani, Mr. Ankur Shah, Neel
      Gala for the Petitioners.
      Mr. M.M. Vashi, Senior Advocate i/by M.P. Vashi & Associates for the
      Respondent No. 1.
                                   ----------
                                        CORAM : R.I. CHAGLA J
                                         DATE : 13 December 2022
      ORDER :

1. Heard Mr. Gautam Ankhad, learned Counsel appearing

for the Petitioners and Mr. Vashi, learned Senior Counsel appearing

for the Respondent No. 1. None appears for Respondent Nos. 2 to 6.

2. By this Writ Petition, under Article 226 of the

Constitution of India, 1950, the Petitioners have challenged the

Judgment and order dated 12th July 2021 passed by the Appellate

Bench of the Small Causes Court at Mumbai. By the impugned

2&3-WP-12584-22.doc

judgment and order, the Appellate Bench had directed deposit by the

Petitioners in the Trial Court of lease rent and had also directed the

amount to be deposited by the Petitioners towards water charges

payable to the Bombay Municipal Corporation to be paid over to

them.

3. Writ Petition is taken up for admission.

4. Mr. Ankhad had referred to paragraph 6 of the impugned

judgment and order, wherein the Appellate Bench had made certain

observations with regard to the erstwhile tenants New Era Fabrics

Limited having four water connection in the property obtained from

the Municipal Corporation. Reference is also made to the dispute

between New Era Fabrics Limited and the Municipal Corporation

over water bills. This resulted in the Suit No. 3626 of 1986 being

filed in the High Court and further proceedings from that Suit.

5. Mr. Ankhad has also referred to the warrant of

attachment which had been issued by the Municipal Corporation

against New Era Fabrics Limited with regard to inter alia the water

charges, which is in the sum of Rs. 5.82 Crores and which warrant of

2&3-WP-12584-22.doc

attachment was issued on 25th June 2015. Thereafter, there was a

notice dated 28th December 2016 issued by the Municipal

Corporation to New Era Fabrics Limited with regard to the warrant of

attachment issued for recovery of outstanding of property taxes and

water charges.

6. Mr. Ankhad in particular, has referred to the first

paragraph of the notice which mentions that at a meeting held on 9th

December 2016, as per directions of Hydraulic Engineer and

intimated by Assistant Engineer (W.W.) G/North Ward, the

outstanding water charges pertaining to their subject department will

be revised and the same will be intimated to the office in short

period.

7. Mr. Ankhad has submitted that there has been no such

revision and/or demand of water charges raised either on the

Petitioners or on New Era Fabrics Limited. He has referred to

paragraph 64 of the impugned judgment and order of the Appellate

Bench, where the Appellate Bench has considered that from Writ

Petition No. 741 of 2016 filed by New Era Fabrics Limited read with

letter of withdrawal of the notice by the Municipal Corporation with

2&3-WP-12584-22.doc

regard to demand of property taxes, an inference can be drawn that

immediate action initiated by the Municipal Corporation has been

withdrawn. The remainder of paragraph 64 by which the Petitioners

are aggrieved, is as under :-

"However, liability of water tax is not given waiver. Therefore, it cannot be inferred that very cause of action has come to an end. Secondly, Order 15A of the Code of Civil Procedure, 1908 is independent cause of action. It is statutory obligation."

8. Mr. Ankhad has submitted that in arriving at such a

finding with regard to water charges, the Appellate Bench has failed

to consider that there was no fresh notice of demand upon revision of

water charges issued either to New Era Fabrics Limited or to the

Petitioners. This was purely an inference drawn by the Appellate

Bench and by virtue of which Appellate Bench has directed the

deposit of water charges to be paid over to the Bombay Municipal

Corporation, Water Supply Department.

9. Mr. Vashi has vehemently opposed admission of the Writ

Petition by contending that the proceedings between the Respondent

2&3-WP-12584-22.doc

No. 1 and the Petitioners are proceedings between the landlord and

tenant and that the Petitioners have not deposited the lease rent as

directed by the Trial Court and which lease rent would include

payment of water charges as demanded by the Municipal

Corporation. Upon not depositing the lease rent, the Petitioners'

defence has been struck off under Order 15A of the Code of Civil

Procedure, 1908. He has submitted that the Petitioners cannot raise

issues as to whether the water charges formed part of the lease rent.

Further, it is not for the Court in exercising jurisdiction under Article

227 of the Constitution of India to determine whether the liability of

water charges has been waived by the Municipal Corporation. He has

submitted that the Trial Court has made substantial progress in the

trial without the defence of the Defendants and by granting stay to

the proceedings, it would derail the trial.

10. Having considered the submissions, in my prima

facie view, considering that the Appellate Bench in the impugned

judgment and order had in the earlier part noted that it was New Era

Fabrics Limited who had disputes with the Municipal Corporation

over payment of water bills and which had resulted in the

proceedings being initiated by New Era Fabrics Limited, it was

2&3-WP-12584-22.doc

necessarily the liability of New Era Fabrics Limited with regard to the

water bills, particularly, when the New Era Fabrics Limited had

obtained four water connections in the property from the Municipal

Corporation.

11. The warrant of attachment which has been

referred to by Mr. Ankhad has been issued by the Municipal

Corporation against New Era Fabrics Limited towards inter alia

payment of water charges in respect of the subject property and this

had been followed by the notice issued by the Municipal Corporation

dated 28th December 2016, wherein it is mentioned that the

Municipal Corporation had in the meeting dated 9th December 2016

decided to revise the outstanding water charges pertaining to its

department, and the same will be intimated to the office. The rest of

the notice concerns property taxes for which attachment action is

withdrawn. However, after issuance of notice dated 28th December

2016, there is nothing on record to show that the Bombay Municipal

Corporation has revised the payment of water charges and intimated

the same either to New Era Fabrics Limited or to the Petitioner

herein. Accordingly, in my prima facie view, the finding recorded in

paragraph 64 which is extracted above is perverse and in view of

2&3-WP-12584-22.doc

which, the Writ Petition requires admission and stay of the operation

and execution of the judgments and orders dated 12th July 2017 and

15th July 2015 which are impugned in the present Writ Petition.

12. The Writ Petition is expedited and shall be placed

on 18th January 2023 at 2.30 p.m. Writ Petition No. 15082 of 2022

shall also be placed on that date.

13. Pleadings shall be completed on or before that

date.

14. In view of internal pages 3 to 6 of the impugned

judgment and order of the Appellate Bench not forming part of the

Writ Petition, leave is granted to the Advocates for the Petitioners to

carry out the amendment and insert these pages forthwith.

15. Mr. Vashi, learned Senior Counsel waives service

on behalf of the Respondent No. 1 for hearing of the Writ Petition.

[R.I. CHAGLA J.]