Madhowji Thakersey Sons And Co. vs M/S. Mehta Warehousing Company
2026 Latest Caselaw 2456 Bom

Bombay High Court

Madhowji Thakersey Sons And Co. vs M/S. Mehta Warehousing Company on 10 March, 2026

2026:BHC-AS:11645

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                              CIVIL REVISION APPLICATION NO.718 OF 2023

             M/s. Madhowji Thakersey Sons & Co.
             Andheri (East), Mumbai - 400 093.                                             ....Applicant
                   V/S
             M/s. Mehta Warehousing Company
             Andheri (East), Mumbai - 400 093.                                             ....Respondent
                                            _________

             Mr.Vijay A. Dhadam with Mr. Amitkumar Singh for the Applicant.
             Mr. Prakash D. Shah, Senior Advocate (through video conferencing) with
             Mr. Jay Sanghavi i/b M/s. PDS Legal for Respondent.

                                                       __________

                                                 CORAM : SANDEEP V. MARNE, J.
                                                 RESERVED ON:     FEBRUARY 27, 2026.
                                                 PRONOUNCED ON : MARCH 10, 2026.


             JUDGMENT:

1. The Applicant has invoked revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 (the Code) for challenging judgment and order dated 3 October 2023 passed by the learned Additional Principal Judge, City Civil & Sessions Court, Dindoshi, Mumbai, dismissing S.C. Suit No.1318 of 2015 filed by the Applicant under Section 6 of the Specific Relief Act, 1963.

2. Applicant was the Plaintiff in S.C. Suit No.1318 of 2015 filed under Section 6 of the Specific Relief Act seeking restoration of possession of

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the 'suit premises' bearing Room No.21, Mehta Estate, Second Floor, Andheri-Kurla Road, Andheri (East), Mumbai 400 093. The Suit was filed in the name of partnership firm M/s. Madhowji Thakersey Sons & Co. The Plaintiff-firm was a protected/statutory tenant in respect of the suit premises by virtue of Agreement dated 23 February 1969 executed with the Defendant landlord. The suit premises were being used by the firm for their business purposes including storing of valuable goods and for operating business. The Defendant-landlord instituted RAE Suit No.332/662 of 2007 in the Small Causes Court at Bandra, Mumbai, which was withdrawn on 11 November 2014. It is Plaintiff's pleaded case that in December 2014 the Defendant-landlord, through its partner, gatecrashed into the suit premises and took over its forceful possession when the partner of the Plaintiff, Mr. Ambrish Jamnadas Kapadia was away in Gujarat for attending a religious ceremony and the other partner Mr. Jamnadas Laxmidas Kapadia was ill and indisposed in Mumbai. It is claimed that on 31 December 2014, representative of Plaintiff-firm visited the suit premises, but was denied entry at the gate of the building Mehta Estate by the security staff and Manager of the Defendant. That the incident was reported to the partner Mr. Jamnadas Laxmidas Kapadia, who could not take any steps due to ill-health. The other partner Mr. Ambrish Jamnadas Kapadia attempted to contact the landlord and on 19 January 2015, the partners Jamnadas Laxmidas Kapadia and Ambrish Jamnadas Kapadia visited the suit premises but were denied entry. Plaintiff-firm wrote letter dated 22 January 2015 to the landlord. They also filed police complaint. In the above background, Plaintiff-firm filed S.C. Suit No.1318 of 2015 in the City Civil Court at

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Mumbai, Dindoshi Branch on 9 April 2015 under Section 6 of the Specific Relief Act seeking restoration of possession of the suit premises.

3. The Suit was resisted by the Defendant by filing Written Statement inter alia raising a plea that Defendant-landlord had filed RAE Suit No.332/662 of 2007 for recovery of possession of the suit premises from the Plaintiff-firm and that during pendency of the suit, the partner Mr. Narayandas Mathuradas Kapadia, who was authorized by other partners vide letter dated 28 March 2004, negotiated the settlement terms with the Defendant. It was contended in the Written Statement that Mr. Narayandas Mathuradas Kapadia, representing the firm and all its partners, settled the disputes and accordingly, a Deed of Surrender dated 11 November 2014 was executed and that the Plaintiff firm surrendered possession of the premises on receipt of amount of Rs.20,00,000/-. Defendant-landlord accordingly denied the theory of forcible dispossession of the Plaintiff-firm.

4. Based on pleadings, issues were framed in the Suit. Parties led evidence in support of their respective claims. Plaintiff-firm examined Mr. Ambrish Jamnadas Kapadia as its witness and relied upon several documents. The Defendant on the other hand, examined its partner Mr. Kumar Girdharlal Shah as its witness and relied on several documents. After considering the pleadings, documentary and oral evidence, the City Civil Court proceeded to dismiss the suit by judgment and order dated 3 October 2023, which is the subject matter of challenge in the present Revision Application.

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5. Mr. Vijay Dhadam, the learned counsel appearing for the Applicant submits that the Trial Court has erred in dismissing the Suit filed by the firm in ignorance of the position that the Defendant-landlord has forcibly obtained possession of the suit premises even before decision of the eviction suit pending before the City Civil Court. He would submit that the entire theory of Plaintiff-firm surrendering possession of the suit premises is patently false. He submits that Mr. Narayandas Mathuradas Kapadia was no longer partner of the firm and did not have any authority to execute the surrender deed. He submits that in eviction suit (RAE Suit No.322/662 of 2007), Mr. Narayandas Mathuradas Kapadia filed Application on 9 October 2007 contending that the partnership firm had ceased to be in existence on account of death of two partners and that the remaining four partners had become "Association of Persons". That Mr. Narayandas Mathuradas Kapadia therefore expressed desire to defend the suit on account of existence of the firm coming to an end. He would submit that the Defendant was well aware of the above position taken by Mr. Narayandas Mathuradas Kapadia about non-existence of firm. That therefore Plaintiff could not have entered into any settlement with Mr. Narayandas Mathuradas Kapadia. He would invite my attention to the endorsement made by the Defendant in the plaint in RAE Suit No.332/662 of 2007 on 11 November 2014 about desire of the Defendant not to proceed with the suit. That after withdrawal of the suit, the Defendant unlawfully secured possession of the suit premises without consent and without following due process of law.

6. Mr. Dhadam would further submit that so called surrender agreement has no existence in eyes of law as the same is not executed by

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the partnership firm. That such surrender could not have been executed by Mr. Narayandas Mathuradas Kapadia after taking a position in eviction suit that the firm had ceased to exist. He would submit that the stale authority letter dated 28 March 2004 did not authorize Mr. Narayandas Mathuradas Kapadia to surrender the tenancy. The authority was only to conduct negotiations. That therefore the so-called agreement relied upon by the Defendant cannot mean existence of consent by the Plaintiff-firm for handing over possession of the suit premises. That the Trial Court has grossly ignored the above position and has erroneously accepted the theory of surrender of possession set up by the Defendant. He submits that since the impugned judgment and order suffers from serious jurisdictional errors, the same is liable to be set aside.

7. Mr. Prakash Shah, the learned Senior Advocate appearing for the Respondent No.1/Defendant opposes the Application submitting that the case involves surrender of tenancy rights by one of the partners of the firm acting on the behalf of the rest of the partners. That the partner Mr. Narayandas Mathuradas Kapadia had clear authority to surrender the tenancy vide letter dated 28 March 2004. That the firm is bound by the acts of the partners. That partnership firm is not a legal entity and comprises of all the partners. In that sense, Mr. Narayandas Mathuradas Kapadia was also one of the co-tenants of the premises and had full authority to surrender the tenancy rights. That Mr. Narayandas Mathuradas Kapadia is not a stranger to the suit premises. That City Civil Court entertaining suit under Section 6 of the Specific Relief Act

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cannot enquire into validity of surrender of tenancy rights. That if other partners of the firm believe that any fraud is practiced by Mr. Narayandas Mathuradas Kapadia while surrendering the tenancy rights, they need to adopt appropriate proceedings against the said partner. He submits that the Defendant has acted bona fide by relying on representation made by one of the partners of the firm that he had full authority to surrender the tenancy rights. That the partner has accepted valuable consideration of Rs.20,00,000/- for surrendering the tenancy rights. That the consideration is paid by way of Demand Draft. That the Suit has been withdrawn acting on the deed of surrender. He would therefore pray for dismissal of the Revision Application.

8. I have considered the submissions canvassed by the learned counsel appearing for rival parties. I have gone through the reasons assigned in the impugned judgment and order by the City Civil Court. I have also perused records of the case filed alongwith the Revision Application.

9. Plaintiff filed Suit under Section 6 of the Specific Relief Act seeking restoration of the possession of the suit premises. The Suit was filed in the name of Partnership Firm and the plaint was verified by one of the partners Mr. Ambrish Jamnadas Kapadia. There is no dispute to the position that the Plaintiff was the tenant in respect of the suit premises. Since Plaintiff enjoyed protection of tenancy rights under the Maharashtra Rent Control Act, 1999, Defendant filed RAE Suit No.332/662 of 2007 in the Small Causes Court for recovery of possession

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of suit premises from the Plaintiff-firm. It is Plaintiff's pleaded case in Section 6 Suit that the Defendant took forcible possession of the suit premises 'in December 2014'. The exact date of alleged dispossession is not disclosed in the plaint. It is pleaded that on 31 December 2014, representative of Plaintiff-firm was denied entry into the suit premises. It is further claimed that two partners of the firm Mr. Ambrish Jamnadas Kapadia and Mr. Jamnadas Laxmidas Kapadia attempted to visit the suit premises on 19 January 2015 but were denied entry in the suit premises. This is the broad pleaded case of the Plaintiff in the Suit.

10. While the Plaintiff pleaded the factum of filing and withdrawal of RAE Suit No.332/662 of 2007, it maintained a stoic silence in the plaint about surrender of tenancy rights by Mr. Narayandas Mathuradas Kapadia. The Suit has been withdrawn on 11 November 2014, which fact is pleaded in paragraph 3 of the plaint and the agreement for surrender is executed on 11 November 2014. Plaintiff however, feigned ignorance about execution of Surrender Agreement by Mr. Narayandas Mathuradas Kapadia and approached the Court with a plain case that the eviction Suit was withdrawn on 11 November 2014 and Defendant-landlord took forcible possession of the suit premises 'in December 2014'.

11. Defendant proved execution of Surrender Deed. It appears that on 11 November 2014, Mr. Narayandas Mathuradas Kapadia, in his capacity as partner of Plaintiff-firm, agreed to surrender tenancy rights in respect of the suit premises and to handover vacant and peaceful possession thereof to the Defendant-landlord upon withdrawal of eviction suit and on receipt of sum of Rs.20,00,000/-. Accordingly, Plaintiff withdrew RAE

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Suit No.332/662 of 2007 on 11 November 2014 by making an endorsement on the plaint to that effect. Immediately after withdrawal of the suit, Mr. Narayandas Mathuradas Kapadia executed a stamped document dated 16 November 2014 surrendering the tenancy rights of the suit premises after acknowledging receipt of amount of Rs.20,00,000/-. He handed over possession of the suit premises to the Defendant. Defendant also executed letter dated 11 November 2014 on their letterhead acknowledging the surrender of tenancy rights.

12. Plaintiff-firm seeks to dispute the rights of Mr. Narayandas Mathuradas Kapadia to surrender the tenancy rights in respect of the suit premises. Strenuous reliance is placed on Application filed by Mr. Narayandas Mathuradas Kapadia on 9 October 2007 in RAE Suit No.332/662 of 2007, which reads thus:

"I Mr. Narayandas Mathuradas, the Proposed Defendant abovenamed state on solemn affirmation as under:

1. The Plaintiffs have filed the above suit against the Defendants, treating the Defendants as a firm. In fact the name of the firm was "Madhowji Thakersey Sons & Co." and not as mentioned in the title of the plaint. In fact the Defendants' firm comprised of 6 partners, out of which two of them have expired and that firm has ceased to be an existence upon the death of the said two partners. The remaining 4 partners have therefore become an Association of Persons. As such this suit that has been filed in the name of the Defendant, treating it as a partnership firm is not maintainable.

2. Out of the 4 erstwhile partners of the Defendants' firm, who now constitute an Association of Persons, one of them is my son, whereas the other two persons have joined hands with the Plaintiffs. The Plaintiffs are interested in obtaining exparte decree against the Defendants in collusion with the other two persons who were the erstwhile partners. The other two persons who were the partners of the Defendants till it ceased to exist as a firm, are likely to join hands with the Plaintiffs, who may obtain some collusive order against the Defendants, whereby my rights will suffer.

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3. I want to defend the suit, but as the Defendant firm is now in existence only as an Association of Persons, I am not able to defend the suit. There are other proceedings in the hon'ble High Court in respect of the properties of the erstwhile firm of the Defendant. By letter dated 17 th October 2005 sent by Mulla & Mulla and Craigie Blunt & Caroe sent on behalf of my son and myself, it is recorded therein that the Defendant firm stands dissolved until a new Partnership Deed is entered into. Hereto annexed and marked Exhibit '1' is a copy the said letter dated 17th October 2005.

I therefore pray that the Plaintiffs be directed to join me as Defendant No. 2 in this suit."

13. It is contended that the Defendant-landlord was well aware of the position taken by Mr. Narayandas Mathuradas Kapadia that the firm was dissolved and remaining four partners were merely Association of Persons. It is contended that since the Defendant was aware of the above position taken by Mr. Narayandas Mathuradas Kapadia, it could not have executed any document of surrender with him. On the other hand, it is Defendant's contention that the other partners had authorized Mr. Narayandas Mathuradas Kapadia to negotiate with the landlord and to surrender the tenancy rights. The Authority Letter dated 28 March 2004 reads thus:

"In view of the decision taken to close the activities of M/s. Pharma Prints (6 partners) Dir of M/s. Madhowji Thkersey Sons & Co. the premises admeasuring approximately 1200 sq.ft. (carpet) at Mehta Estate, Andheri-Kurla Road, Andheri standing in the name of M/s. Madhowji Thakersey Sons & Co. as a tenant, from where the activities of M/s. Pharma Prints was conducted will now become vacant.

The said premises referred above, is no longer required by M/s. Madhowji Thakersey Sons & Co. and hence, it is decided to surrender the premises to the landlords, who are prepared to pay M/s. Madhowji Thakersey Sons & Co., the market rate less the landlords share.

We hereby authorize Shri J.M. Kapadia and Shri Narayandas Mathuradas to negotiate with the landlord Mr. Kirtbhai Shah to arrive at an amount payable to M/s. Madhowji Thakersey Sons & Co. on their surrendering the premises after the premises is vacated by M/s. Pharma Prints (6 partners). They are also jointly authorized to receive the payment from the Landlord on behalf of M/s.

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Madhowji Thakersey Sons & Co. The surrender of the said premises is subject to conditions set forth hereunder."

14. The Agreement dated 11 November 2014 contains a specific reference to the letter dated 28 March 2004 in recital (iv) which reads thus:

"iv. By Letter dated 28/03/2004, a Xerox copy whereof is hereto annexed, all the Partners of the said firm had granted authority to the party of the Second Part to deal/decide the affairs of the said firm vis-a-vis the suit premises with one of the partners of M/s. Mehta Warehousing Company, Mr. K.G. Shah."

15. Thus, Defendant had adopted a defence that the tenancy rights and possession of the suit premises are surrendered by one of the partners of Plaintiff-firm on 16 November 2014. Defendant relied on authority given to the said partner by the other partners for causing such surrender. Whether such surrender is valid or not is outside the scope of inquiry under Section 6 of the Specific Relief Act. The limited remit of inquiry under Section 6 of the Specific Relief Act is to find out whether Plaintiff was in possession on the date of dispossession, whether dispossession has occurred without consent or without following due process of law and whether the suit has instituted within a period of six months from the date of dispossession. In the present case, Defendant has come out with the defence that the possession of the suit premises was obtained with consent of the Plaintiff-firm. Prima facie, there is some document to indicate that Mr. Narayandas Mathuradas Kapadia had authority to surrender the tenancy rights and to receive premium/settlement amount from the landlord. The Defendant-landlord has paid sum of Rs.20,00,000/- to Mr. Narayandas Mathuradas Kapadia, who had the authority to receive the same vide letter dated 28 March

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2004. Whether Mr. Narayandas Mathuradas Kapadia paid share of other partners is an altogether different issue, which is outside the scope of enquiry of Section 6 Suit. Considering this position, in my view, City Civil Court, while deciding Suit under Section 6 of Specific Relief Act, could not have instituted an enquiry into validity of surrender of tenancy. If other partners of the firm believe that Mr. Narayandas Mathuradas Kapadia has acted against their interest, they are free to file appropriate proceedings against him. However, the Court, deciding Suit under Section 6 of the Specific Relief Act, cannot enquire into the issue of validity of surrender of tenancy right of Mr. Narayandas Mathuradas Kapadia.

16. Considering the overall conspectus of the case, I am of the view that for the purpose of Suit under Section 6 of Specific Relief Act, the securing of possession of suit premises by the Defendant appears to be with consent of the Plaintiff-firm. Mr. Narayandas Mathuradas Kapadia was also one of the co-tenants. Whether one co-tenant can surrender tenancy rights is an altogether different aspect. If Plaintiff believes that tenancy rights are still intact, they can file a declaratory suit to that effect in the Small Causes Court. The issue here is very limited i.e. whether the act of securing of possession by the Defendant is forcible or not. When one of the partners of the firm surrenders the possession on receipt of amount of Rs.20,00,000/-, it cannot be contended that the act of securing possession of premises by the Defendant is forcible or without consent of the Plaintiff.

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17. I therefore do not find any valid reason to interfere in the judgment and order passed by the City Civil Court. The Court has not committed any jurisdictional error for this Court to interfere in the order in exercise of revisionary jurisdiction. The Civil Revision Application is devoid of merits. It is accordingly dismissed without any order as to costs.

(SANDEEP V. MARNE, J.)

SUDARSHAN RAJALINGAM KATKAM