Bombay High Court
M/S. Manilal And Son, Partnership ... vs Bombay Forgings Ltd on 24 January, 2023
Bench: Madhav J. Jamdar
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PALLAVI
Digitally signed
by PALLAVI
MAHENDRA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2023.01.27
18:08:06
+0530
CIVIL REVISION APPLICATION NO.42 OF 2023
M/s. Manilal and Son.,
Partnership Firm ... Applicant
Versus
Bombay Forgings Ltd.
(formerly known as Bombay Forging Pvt. Ltd.) ...Respondent
Dr. Birendra Saraf a/w Mr. Jay Sanklecha, Ms. Shweta Jaydev, Ms. Anuja
Bhansali, Ms. Neha Sonawane, Mr. Shamant Sanya i/b. M/s. Rashmikant
and Partners, for the Applicant.
Mr. Navroz Seervai, Senior Advocate a/w Mr. Vineet Naik, Senior Advocate
a/w Ms. Hemlata Jain, Ms. Nupur Jalan, Mr. Sukand Kulkarni,
Mr. Somanth Anchan, Mr. Raghav Gupta and Ms. Sanyukta Karne for the
Respondent.
CORAM : MADHAV J. JAMDAR, J.
DATED : 24th JANUARY 2023
P.C. :
1. Heard Dr. Birendra Saraf, learned Senior Counsel appearing
for the Applicant and Mr. Navroz Seervai, learned Senior Counsel
appearing for the Respondent.
2. The Applicant filed Suit bearing T.E. & R Suit No.39/44 of
2002 seeking ejectment in respect of the suit premises i.e. the plot of
land alongwith structures standing therein. It is the contention of the
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Applicant that the defendants have lost protection of the
Maharashtra Rent Control Act, 1999 on the ground that the date on
which the Maharashtra Rent Control Act, 1999 came into force i.e. on
31st March 2000, the share capital of the Respondent was Rs.1.20
Crores.
3. The learned Trial Court has come to the conclusion that the
plaintiffs proved that the defendants have lost protection of the
provisions of the Maharashtra Rent Control Act, 1999 and the lease
has expired by efflux of time on 15th February 2002. The learned Trial
Court further held that plaintiffs proved that the defendant has
committed breaches of the terms and conditions of the lease. The
learned Trial Court recorded the finding that the defendant has failed
to prove that they are entitled to renew the lease for further period of
30 years and therefore, passed decree of eviction.
4. In the Appeal filed before the learned Appellate Court of the
Court of Small Causes at Mumbai (Bandra Branch) being Appeal
No.159 of 2007, it has been held that the defendant is entitled to the
protection of the Maharashtra Rent Control Act, 1999 and therefore,
the learned Trial Court had no jurisdiction to entertain and try the
said suit. The learned Appellate Court also on merits held in favour
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of the Respondent. Thus, the learned Appellate Court reversed the
decree passed by the learned Trial Court and dismissed the suits.
5. It is the main contention of Dr. Saraf that the reduction in the
share capital of the Respondent from 1.20 Crores to Rs.80 Lakhs is
sanctioned by the order of the Board for Industrial and Financial
Reconstruction, New Delhi (B.I.F.R.) dated 11 th November 2002. The
said order records that the Bench has taken on record the MDRS
submitted by the ICICI (M.A.) under section 18(4) of the Sick
Industrial Companies (Special Provisions) Act, 1985 with immediate
effect. The order further records that the sanctioned scheme is
enclosed. It is the contention of Dr. Saraf that section 18(4) of the
Sick Industrial Companies (Special Provisions) Act, 1985 provides
that the scheme shall be sanctioned by the Board and shall come into
force on such date, as the Board may specify in this behalf. Proviso to
sub-section (4) of section 18 provides that different dates may be
specified for different provisions of the scheme. The order dated 11 th
November 2002 of the Board states that the sanctioned scheme shall
come into force with immediate effect i.e. 11 th November 2002. If
said date i.e. 11th November 2002 is taken into consideration then it
is significant to note that the suit was filed on 27 th March 2002 on
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which date the sanctioned paid-up equity share capital of the
Respondent was Rs.1.20 Crores. If it is held that the scheme came
into force w.e.f. 11th November 2002, then it is very clear that on the
date of the filing of the suit, the Respondent has no protection of the
Maharashtra Rent Control Act, 1999.
6. Mr. Seervai, learned Senior Counsel of the Respondent has
relied on the judgment of the Supreme Court in CARONA Ltd. Vs.
Parvathy Swaminathan & Sons.1. Dr. Saraf, learned Senior Counsel
also relied on the same judgment. In the said judgment, it has been
held that the basic rule is that the rights of the parties should be
determined on the basis of the date of the institution of the suit.
Thus, if the plaintiff has no cause of action on the date of the filing of
the suit, ordinarily, he will not be allowed to take advantage of the
cause of action arising subsequent to the filing of the suit. Conversely,
no relief will normally be denied to the plaintiff by reason of any
subsequent event if at the date of the institution of the suit, he has a
substantive right to claim such relief. It has been further held that the
relevant date will be the date of the institution of the suit. Thus, if
the date on which the scheme was sanctioned by the Board i.e. 11 th
1. (2007) 8 SCC 559
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November 2002, is taken into account, as the date on which the
reduction in share capital from Rs.1.20 Crores to Rs.80 Lakhs has
taken place, then the suit filed on 27 th March 2002 is within
jurisdiction and maintainable u/s.41 of the Presidency Small Causes
Court Act, 1882.
7. On the contrary, it is the submission of Mr. Seervai, learned
Senior Counsel appearing on behalf of the Respondent that the
sanctioned scheme specifies the cut-off date as 1 st April 2001.
Therefore, according to him, the reduction in share capital is w.e.f. 1 st
April 2001. However, admitted position on record shows that the
date on which the suit was filed i.e. 27 th March 2002, the share
capital was 1.20 Crores. The same was reduced pursuant to the
scheme which was sanctioned by the Board on 11 th November 2002.
It is also the contention of Mr. Seervai that the scheme was
sanctioned on 8th March 2002 by B.I.F.R. as on that date certain
directions were issued. However, perusal of said order dated 8 th
March 2002 of B.I.F.R. and the directions given in the said order
shows that certain points were directed to be incorporated in the
scheme, however no sanction was granted. Therefore, prima facie, it
cannot be said that the date of sanction of the scheme was 8 th March
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2002. In any case, there are various arguable questions raised.
8. It is also one of the contentions of Mr. Seervai that even if it is
held that Small Causes Court has jurisdiction to deal with the case
then also on all the points Appellate Court has held in favour of the
Respondents and therefore, no interference in the Civil Revision
Application is called for. It is the contention of Dr. Saraf that the
findings recorded on other aspects by the learned Appellate Court are
not in accordance with the evidence on record. He submits that the
learned Trial Court has passed decree of eviction by considering the
evidence on record.
9. Therefore, various arguable questions are raised in the Civil
Revision Application requiring admission of the Civil Revision
Application.
10. Therefore, Rule.
11. The learned Advocate for the Respondent waives service.
12. Till the next date, ad-interim relief in terms of prayer clauses
(c) and (d).
13. Dr. Saraf, after taking instructions states that the Applicant will
also not create any third party interest in the suit premises.
14. Mr. Seervai seeks time to file an affidavit-in-reply with respect
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to interim relief. Let such affidavit-in-reply be filed within a period of
two weeks from today. Rejoinder, if any, be filed within one week
thereafter.
15. Stand over to 17th February 2023.
[MADHAV J. JAMDAR, J.]
