Nisha Wd/O Late Prafulla Buty And ... vs M/S Solo, Nagpur And Others
2023 Latest Caselaw 10385 Bom

2023:BHC-NAG:14938

                                                1               28.WP.5453-2021 JUDGMENT.odt




                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR

                                   WRIT PETITION NO. 5453 OF 2021

                     1. Nisha wd/o Late Prafulla Buty,
                        Aged about 76 years, Occ. Housewife,


                     2. Shreekrishna s/o Late Prafulla Buty,
                        Aged about 51 years, Occ. Business,


                     3. Vyankatesh s/o Late Prafulla Buty,
                        Aged about 49 years, Occ. Business,


                     4. Balaji s/o Late Prafulla Buty,
                        Aged about 49 years, Occ. Business,

                        All R/o House No. 128, South
                        Ambazari Road, Shraddhanand Peth,
                        Nagpur-440022.                               PETITIONERS


                          Versus


                     1. M/s SOLO,
                        Partnership firm registered under the
                        Partnership Act, having its office at
                        233, City Centre, 6th Floor, Above
                        Raymond Shop, West High Court
                        Road, Nagpur.


                     2. Girish s/o Gopaldas Mulani,
                        Aged about 59 years,
                                2            28.WP.5453-2021 JUDGMENT.odt




 3. Laju w/o Girish Mulani,
    Aged about 58 years,


 4. Karan s/o Girish Mulani,
    Aged about 33 years,

     All R. Nos. 2 to 4 partners of
     Respondent No.1 Firm and R/o. 'Sargo
     House', Plot No.16, Vidya Vihar
     Colony, Pratap Nagar, Nagpur-440022.      RESPONDENTS

-----------------------------------------------
Mr. R.M. Sharma, Advocate for the Petitioners.
Mr. S.S. Dewani, Advocate for the Respondent Nos. 1 to 4.
-----------------------------------------------


                   CORAM : AVINASH G. GHAROTE, J.

                   DATED      : 9th OCTOBER, 2023.

ORAL JUDGMENT :-




            Heard.

2. Rule. Rule made returnable forthwith.

3. Heard finally by the consent of the learned counsels

appearing for the rival parties.

3 28.WP.5453-2021 JUDGMENT.odt

4. The petition challenges the judgment of the learned

Appellate Court dated 15.09.2021, whereby the learned

Appellate Court by partly allowing the appeal has refused the

claim of the petitioners, for grant of damages at the rate of

Rs. 18,000/- per day on the ground that the refund of security

deposit as contemplated by Clause 10(xvi) of the agreement in

question does not contemplate grant of any damages unless the

security deposit is refunded.

5. Mr. Sharma, learned counsel for the petitioners

contends, that the impugned judgment suffers from infirmity

inasmuch as the learned Appellate Court does not consider the

language of Clause 6 (a), (b) and (c) of the agreement, which

entail forfeiture and adjustment of the amount of security

deposit on account of prior termination of the agreement in

question. It is the contention that Clause 10(xvi) and 11 (a) and

(b) cannot be read in isolation but have to be read in

conjunction with Clause 6 (a), (b) and (c).

6. Mr. Dewani, learned counsel for the respondent

Nos. 1 to 4 submits, that Clause 10(xvi) has to be read only in 4 28.WP.5453-2021 JUDGMENT.odt

conjunction with Clause 11 and Clause 6 (a), (b) and (c), would

not come into the picture at all which has rightly been so held

by the learned Appellate Court. He, therefore, supports the

impugned judgment.

7. Clause 6 of the agreement in question speaks about

the security deposit and its refund. It also contemplates

regarding deduction from the security deposit the amounts

payable by the licensee under the agreement. It would therefore

be necessary, while deciding the question of determination of

the damages as contemplated by Clause 10(xvi) to read the

agreement completely and not in isolation. The impugned

judgment does not appear to have taken into consideration

Clause 6 (a), (b) and (c), considering which, it would be apt

that it is directed to do so.

8. The impugned judgment is hereby quashed and set

aside and the matter is remitted back to the learned Appellate

Court to decide the appeal afresh by reading Clause 6 (a), (b)

and (c), Clause 10(xvi) and Clause 11 together and in sum and

substance the entire agreement as a whole and not in a 5 28.WP.5453-2021 JUDGMENT.odt

piecemeal manner.

9. Parties shall appear before the learned Appellate

Court on 16.10.2023 and no separate notice shall be necessary

for their appearance. The learned Appellate Court shall decide

the matter in light of what has been said above within a period

of 30 days from 09.10.2023.

10. The Petition is accordingly allowed.

11. Rule is made absolute in the above terms. No costs.

(AVINASH G. GHAROTE, J.)

S.D.Bhimte

Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 11/10/2023 17:50:46