Bombay High Court
Ashwin S/O Dattatraya Khanzode vs Karan S/O Dinesh Shahu And Another on 12 September, 2022
Bench: Manish Pitale
32-WP5208.22.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETN. NO. 5208 OF 2022
Ashwin Dattatraya Khanzode
-Vs.-
Karan Dinesh Shahu and another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.B.N.Mohta, counsel for the petitioner.
CORAM : MANISH PITALE, J.
DATE : 12.09.2022
Heard the learned counsel appearing for the
petitioner.
2. By this petition, the petitioner, who is a licensee,
has challenged concurrent orders passed by the two
Courts below in the context of issuance of distress
warrants under the provisions of the Provincial Small
Causes Courts Act, 1887 (hereinafter referred to as 'Act
of 1887'). The proceeding was initiated by the licensor
under section 27(A) of the Act of 1887 by issuing notice
dated 02/07/2020. By this notice, the licensor put the
petitioner to notice as regards arrears of licence fee for
specific periods of the year 2019 to 2020.
3. After having issued the aforesaid notice, the
licensor initiated proceedings by way of distress warrant
case bearing No.3 of 2020 before the Court of Small
Causes Court, Nagpur. The same was resisted on the
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part of the petitioner by claiming that the notice issued
by the licensor is itself defective, but the said contention
was rejected by the Small Causes Court and by order
dated 19/04/2022, distress warrants were issued
against the petitioner for arrears of licence fee for
specific period as stated in the notice. Aggrieved by the
same, the petitioner filed Miscellaneous Civil Appeal
No.132 of 2022 before the Court of District Judge-1,
Nagpur. By the impugned judgment and order dated
19/07/2022, the District Court dismissed the appeal,
thereby confirming the order passed by the Small
Causes Court, Nagpur.
4. Mr. Mohta, learned counsel appearing for the
petitioner, submitted that perusal of the relevant
provision of the Act of 1887, particularly section 27(A)
thereof would show that the notice issued by the
licensor itself was defective and therefore, the
proceedings undertaken before the Small Causes Court
ought to have been thrown out, only on the said ground.
By inviting attention to the contents of the said notice,
particularly paragraph 6 thereof, wherein the licensor
had demanded payment of Rs.8,60,000/- with interest,
it was submitted that the said amount pertained to a
period of more than 12 months and that therefore, the
distress warrant case could not have been entertained
by the Small Causes Court. It was submitted that that
neither the Small Causes Court nor the District Court
appreciated the same in the correct perspective.
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5. Reliance was sought to be placed on judgments
of this Court in the case of Vinayak Narayan Deshpande
and others v. Deelip Prahlad Shisode, reported in 2010
(3) Mh.L.J. 807 and also in the case of Ramchandra
Appaji Manjage v. Mahavir Gajanan Mug, reported in
1992 Mh.L.J. 436 to emphasize that when the notice
itself was defective, proceeding initiated in pursuance of
such a notice was untenable and that therefore, the
impugned orders passed by the two Courts below
deserved to be set aside. It was submitted that a suit
could perhaps be filed by the licensor, but the distress
warrant case was clearly untenable in the facts and
circumstances of the present case.
6. In order to consider the said contention raised
on behalf of the petitioner, this Court has perused
Sections 27(A) and 27(B) of the Act of 1887. The effect
of the said provisions clearly appears to be that such a
notice, as was issued by the licensor in the present case,
could be issued for issuance of distress warrant only in
respect of licence fee/rent that was payable for a period
of more than three months and less than twelve months.
The notice ought to be issued of 15 clear days, so as to
initiate a valid distress warrant case before the Small
Causes Court.
7. Perusal of the notice dated 02/07/2020, issued
on behalf of the licensor shows that the petitioner was
called upon to pay arrears of licence fee for two specific
periods and this is evident from paragraphs 4 and 5 of
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the said notice. While paragraph 4 pertains to arrears
as claimed by the licensor at the rate of Rs.45,000/- per
month for a specific period, which is clearly less than
twelve months and more than three months, paragraph
5 of the said notice pertains to arrears of rent at the rate
of Rs.50,000/- per month for a specific period of ten
months in the years 2019 and 2020. It is thereafter in
paragraph 6 that the licensor has calculated the total
amount concerning two such periods, which are more
than three months and less than twelve months,
referred to in paragraphs 4 and 5 of the notice.
8. The Small Causes Court as well as the District
Court have taken into consideration the specific periods
and different rates at which the arrears of licence fee
are specified in the notice dated 02/07/2020. After
taking note of the specific periods, both the Courts
below concurrently have found that such periods being
less than twelve months and clearly more than three
months, no fault could be found with the notice dated
02/07/2020, issued on behalf of the licensor. The
Courts below were aware of sections 27(A) and 27(B) of
the Act of 1887 and accordingly, rejected the contention
raised on behalf of the petitioner that the notice was
defective.
9. Even before this Court, it was vehemently
contended on behalf of the petitioner that paragraph 6
of the notice dated 02/07/2022, would show that total
amount claimed by the licensor pertained to a period of
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eighteen months, i.e. adding the periods specified in
paragraphs 4 and 5, thereby indicating that such a
notice fell foul of sections 27(A) and 27(B) of the Act of
1887.
10. This Court is not in agreement with the
contention raised on behalf of the petitioner as the
notice clearly stated the specific periods at different
rates of licence fee, i.e. Rs.45,000/- per month for the
period pertaining to 2019 and specific period between
September 2019 and June 2020 being for arrears of
licence fee at a higher rate of Rs.50,000/- per month.
The statements made in the notice being clear in terms
of the periods for which arrears of licence fee were
claimed, both being less than twelve months and more
than three months, this Court is of the opinion that the
contentions raised on behalf of the petitioner about the
notice itself being defective cannot be accepted.
11. Once this finding is reached, the aforesaid
judgments on which reliance is placed on behalf of the
petitioner, cannot be of any assistance to the petitioner,
for the reason that in the said judgments, it is laid down
that no proceeding can be initiated on the basis of a
notice, which is itself found to be defective. Since this
Court is of the opinion that the notice dated
02/07/2020, cannot be said to be defective, the
aforesaid contention raised on behalf of the petitioner
cannot be accepted.
12. At this stage, an attempt was sought to be made
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on behalf of the petitioner to contend that the original
agreement between the parties, was not sufficiently
stamped. This Court is of the opinion that such a
contention is a futile attempt on the part of the
petitioner to somehow avoid the logical consequences of
the concurrent orders passed by the two Courts below.
Hence, the said contention is also rejected.
13. In view of the above, the writ petition is found
to be without any merit and accordingly it is dismissed.
No order as to costs.
JUDGE
Signed By:GHANSHYAM S
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Signing Date:14.09.2022 10:23
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