Gujarat High Court
Darabshaw B Curshetjee And Sons ... vs Amba Vijay Private Limited Co on 4 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 262 of 2003
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DARABSHAW B CURSHETJEE AND SONS (GUJARAT) PRIVATE LIMITED.
& ORS.
Versus
AMBA VIJAY PRIVATE LIMITED CO.
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Appearance:
MR RC KAKKAD(389) for the Applicant(s) No. 1,2,3,4,5
DELETED for the Opponent(s) No. 2,3,4,5,6,7,8
MR AMAR D MITHANI(484) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 04/04/2025
ORAL ORDER
1. The present Civil Revision Application is filed under Section 29(2)
of the Bobay Rents, Hotel and Lodging House Rates Control Act
1947 (for short "the Rent Act") challenging Judgment and Decree
dated 26.08.2002 passed by Assistant Judge, Jamnagar, passed in
Regular Civil Appeal No.115 of 1987, whereby the Judgment and
Decree dated 06.07.1987, on the ground that defendants are tenant
in arrears, has been confirmed the Cross Objection of the plaintiff
to the fact that the Trial Court has erred in not granting eviction on
the ground that defendant nos.1 to 8 have sublet the suit premises
to defendant no.9, is quashed and set aside and held that defendant
nos.1 to 8 have sublet the suit premises to defendant no.9 by the
First Appellate Court.
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2. For the sake of brevity and convenience the parties are referred to
as they are stated before the Trial Court.
3. The brief facts leading to the filing of the present Civil Revision
Application are as under.
4. It is the case of the plaintiff before the Trial Court that rent note
dated 17.05.1961 produced vide Exhibit-57 has been executed
between defendant no.1 i.e. the partnership firm and the
predecessor in title of the plaintiff and the partners of defendant
nos.1 to 5 Firm cease to function its business and the plaintiff being
a Private Ltd. Company registered under the Indian Companies
Act, filed the suit on the ground that the plaintiff is the owner of
the premises and that defendant no.1- Partnership Firm cease to
function its business.
5. It was the case of the plaintiff before the Trial Court that even
after the expiry of the period of lease, the defendant no.1 continued
the tenancy and defendant no.1 has unlawfully sublet, transferred
or assigned its interest in the suit premises and handed over the
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exclusive possession of the premises to defendant no.9 which is a
Pvt. Ltd. Company on or about 01.11.1969 and the same is without
the consent of the plaintiff.
6. It is the case of the plaintiff that earlier the plaintiff had filed Suit
No.534 of 2017 against defendant nos.1 and 9 for eviction and as
there was a defective suit notice, the said suit was dismissed and
the matter was contested up to the High Court and thereafter, the
plaintiff was given liberty to file a fresh suit and the plaintiff
withdrew the said suit. Thereafter, the plaintiff issued a notice upon
the defendant partnership firm and its partners demanding arrears
of rent for more than six months and as the defendant nos.2 to 8 did
not adhere to the said demand, the plaintiff filed suit on the ground
that defendants, defendants partnership firm and its partners are
tenant in arrears and the plaintiff filed the suit for eviction on the
ground of subletting and in the said suit defendants appeared and
defendant nos.2, 4, 5 and 6 filed their written statement vide
exhibit 33 and defendant no.9 filed written statement at exhibit 32.
The Trial Court framed issues vide exhibit 34 as under:
"(1) Whether plaintiff proves that
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defendants are tenant in arrears for more
than six months?
(2) Whether plaintiff proves that defendant
no.1 to 7 have sub-leted the suit premises to
defendant no.8?
(3) Whether the plaintiff is entitled to
recover Rs.26702 as rent from defendants 1
to 7?
(4) Whether the plaintiff is entitled to get
relief as prayed for in para (5) of the plaint?
(5) Whether defendants prove that plaintiff's
suit is not tenable?"
7. The suit was decreed on the finding of issue no.1 and the issue no.2
was in negative. And after going through the documentary
evidence, oral evidence and giving finding on all issues, the Trial
Court granted eviction of the defendants from the suit premises on
the ground that the tenant is in arrears of rent and therefore,
directed the defendants and the Trial Court decreed the suit and
directed the defendants to hand over the peaceful and vacant
possession of the premises. Thereafter, the defendant challenged
the said order by way of filing Regular Civil Appeal No.115 of
1987 and in the said appeal the plaintiff filed Cross Objection vide
exhibit 19, on the ground that the Trial Court has erred in deciding
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issue no.2. Along with the ground that the plaintiff is entitled for
possession of the suit premises on the ground that the defendants
are in arrears of rent, the plaintiff is also entitled for eviction of the
defendants from the suit premises as defendant nos.1 to 8 have
sublet the suit premises to defendant no.9. After re-appreciating the
evidence the First Appellate Court has dismissed the appeal of the
defendants and has set aside the findings of the Trial Court so far
as the issue of subletting of defendant nos.1 to 8 in favor of
defendant no.9, and held that the defendant nos.1 to 8 have
subletted the suit premises to defendant no.9, hence the present
Civil Revision Application.
Submissions of learned advocate for the petitioner defendant-
tenant.
8. Learned advocate for the defendant has mainly argued that the
finding of the Trial Court on the ground of subletting was proper
and the Appellate Court could not have set aside the said finding of
the Trial Court, as only the name of the defendant no.1 partnership
firm has changed. It has been argued by the learned advocate for
the defendant that the suit property was let to the firm of "Ms.
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Darabshaw B. Curshetjee & Sons" and right from the beginning of
tenancy, said premises was used for residential purpose of its
servants.
9. The learned advocate for the defendant relied on the terms of the
lease deed which is produced at Exhibit-57 and argued that in the
said lease deed, there is no restriction on the plaintiff to convert the
defendant no.1 partnership firm into a company.
10. The learned advocate for the defendant has also argued that by
converting the partnership firm into a company, the same does not
amount to a breach of tenancy and that the same does not amount
to subletting the suit property to a third party.
11. Learned advocate for the defendant has also argued that from the
plain reading of the written statement and the oral evidence led by
the the defendants, the defendants have clearly stated that
defendant no.9-Company, which has come into existence and is in
possession of the property, and the said company is ready and
willing to pay the rent and therefore, the Trial Court and the
Appellate Court could not have granted a decree of eviction on the
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ground of defendants being tenant in arrears and therefore also, the
decree of eviction on the ground of defendants being tenants in
arrears could not have been passed by the Trial Court and
confirmed by the First Appellate Court.
12. The learned advocate for the defendant has also argued that the
partners of defendant no.1-Trust Partnership, are the shareholders
in defendant no.-9-Company and therefore also there is no
subletting of the suit property by defendant no.1 in favor of
defendant no.9 and therefore also, the First Appellate Court could
not have granted a decree of eviction on the ground of defendant
no.1, subletting the property in favour of defendant no.9. In view of
the said fact, it has been argued by the learned advocate for the
defendant that the Judgment and Decree passed by the First
Appellate Court and the Trial Court are required to be quashed and
set aside.
Submissions of learned advocate for the plaintiff:-
13. Learned advocate for the plaintiff has relied on the fact that the
terms of the rent note are very clear wherein the clause states as
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under:
"that the lessee shall not assign his interest in the said
premises under this present nor underlet nor part with the
possession of the same or any part thereof to any person
whomsoever without the consent in writing of the lessor."
14. Therefore it has been argued that the admitted fact in the present
case is that the rent note produced vide exhibit 57, dated
17.05.1961 is in name of defendant no.1 and defendant no.9 was
incorporated on 15.07.1969 and the partners of defendant no.1
dissolved the firm by virtue of an instrument dated 15.07.1971.
Therefore, it has been argued that at the time when the predecessor
of the plaintiff had executed a rent note in favor of defendant No.1,
defendant no.9 was not in existence, and the fact that defendant
no.1, having been dissolved, it cannot be said that defendant no.9 is
the same entity as defendant no.1.
15. Learned advocate for the plaintiff has relied on the Judgments of
the Hon'ble Supreme Court in case of U.P.State Industrial Dev.
Corpn. Ltd. Vs. Monsanto Manufacturers (P) Ltd. reported in
AIR 2015 SC 1445, in case of Ms.General Radio & Appliances
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Co. Ltd. V. M.A.Khader reported in AIR 1986 SC 1218, in case
of Singer India Ltd. V. Chander Mohan Chadah reported in
AIR 2004 SC 4368.
16. It has been argued by learned advocate for the plaintiff that there is
a clear admission of the defendant's witness produced at exhibit
115, that the shareholders of defendant no.9 along with the
erstwhile partners of defendant no.1, there are other persons who
are the shareholders of defendant no.9 and therefore, it has been
argued that it cannot be said that defendant no.1 and defendant no.9
are the same entity and therefore, it cannot be said that the
defendant no.1 has not sublet the suit property to defendant no.9.
17. Learned advocate for the plaintiff has also argued that looking to
the facts of the present case, the defendant no.1 has not paid any
amount of rent though having been served with a statutory notice
and looking at the oral evidence of defendant, the defendant has
categorically stated in their written statement that they are ready
and willing to pay the rent, if the plaintiff accepts the rent from
defendant no.9-Company and therefore, as defendant no.9 is not a
tenant of the plaintiff and therefore, it has been argued that the
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plaintiff has proved that the defendant no.1 is tenant in arrears and
therefore, even on the ground of defendant being tenant in arrears,
the plaintiff is entitled for possession of the suit premises.
18. Having heard learned advocate for the parties and having
considered the Judgment and Decree passed by the Trial Court and
the First Appellate Court and the oral evidence led by the parties to
the present proceedings and also the record and proceedings, the
fact remains that, while deciding the present Civil Revision
Application, the dispute that pertains in the present proceeding is
with respect to eviction order on the ground of subletting Section
13(1)(e) as under:-
"(e) that the tenant has, since the coming
into operation of this Act,
[unlaw-fully sub-let] the whole or part of
the premises or assigned or transferred in
any other manner his interest therein; or
[(ee) that the tenant has, after the
commennent of the Bombay Rents, Hotel
and Lodging House Rates Control
(Gujarat Extension and Amendment) Act,
1963, given the whole or any part of the
premises on licence for monetary
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consideration to any person, without the
previous permission of the landlord; or]"
19. While taking into consideration the fact of whether the plaintiff has
proved that the suit property was given on rent to defendant no.1,
the said fact is very clear from the rent note produced vide exhibit
57, which clearly states that, the suit property was given on rent to
defendant no.1.
20. Moreover, the fact remains that, the said rent note is of date
17.05.1961 and on that date, defendant no.9 was not even in
existence and defendant no.9 was incorporated on 15.07.1969 and
therefore, it cannot be said that, the suit property was given on rent
to defendant no.9. The argument that learned advocate for the
defendant has made is that, there is only a change in name and
there is only a change of identity of the tenant and earlier the tenant
of the suit premises was a partnership firm, which were represented
by the partners of the siad partnership firm and at present, the said
company, wherein the partners are the shareholders of the said
company are the tenants of the suit premises. The fact remains that,
even as per the oral evidence of the defendant at exhibit 115,
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whereby, the officer of defendant no.9 was examined and when the
said witness was shown, mark 82/9, the shareholders of defendant
no.9, as on 18.07.1969, at serial nos.2 to 8 are mentioned and
"others" which is mentioned in the said document, he could not
recollect the names of other shareholders and at para 30 of his
cross-examination, the said witness of the defendant also states
that, there are 2 to 4 Directors in Defendant no.9 company.
Therefore, it can be clearly established that, over and above the
partners of defendant no.1, there are other persons/entity, who are
shareholders of defendant no.9. Therefore, it cannot be said that,
the defendant no.1 and defendant no.9 are the same entity.
21. In the present case, the defendant no.1-partnership firm has
dissolved on 15.07.1971 and therefore, it cannot be said that,
defendant no.1 is one of the shareholders of defendant no.9 and
therefore, it can be clearly established that, defendant no.1 has
parted with possession of the suit property in favor of defendant
no.9. Moreover, it is not the case of defendant no.1 that, along with
defendant no.9, defendant no.1 is also doing business in the suit
premises. The fact remains that, the defendant no.1 has already
been dissolved in the year 1971.
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22. The admitted fact remains that, a distinct legal entity, namely a
company i.e. defendant no.9 has been given exclusive possession
of the suit premises for carrying on its activities and defendant no.9
admittedly has been claiming a independent right to hold the
disputed premises as tenant. The fact remains that, defendant no.9
is a distinct legal entity, its assets and liabilities belong to
defendant no.9, which can sue and be sued in its name and
defendant no.9 is run by different group of persons and it is not
relevant if some of the partners of dissolved partnership firm of
defendant no.1 are shareholders of defendant no.9. Moreover, it is
a specific case of defendant no.1 that defendant no.1 has been
dissolved and defendant no.9 is occupying the tenant in premises
and carrying on its various activities from the said premises by
asserting its independent right as a tenant. Moreover, defendant
no.1 has also stated that the defendant no.1 is ready and willing to
pay the rent and the same be accepted from defendant no.9 which
is a separate entity.
23. The fact that, defendant no.1 has clearly stated that, defendant no.9
is carrying on its business in the a suit premises, the activities of
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defendant no.9 cannot be held to be activities of defendant no.1.
Hence, the defendant no.1 has parted with the possession of the
premises in favor of defendant no.9.
24. Hence, the defendant no.1 has parted with the possession of the
premises without the consent of the plaintiff and sublet the suit
premises to defendant no.9.
25. In view of the said fact, the First Appellate Court has, after re-
appreciating the evidence, come to the right conclusion that
defendant no.1 has sublet the premises to defendant no.9.
Moreover, the rent note itself is very clear, wherein it has been
mentioned that the defendant no.1 cannot assign his interest in the
premises or let or part with possession without the consent in
writing of the plaintiff. Therefore, there is a complete breach of the
condition and therefore, the Appellate Court has rightly held the
cross objection filed by respondent no.1 as tenable and granted
decree of eviction of the defendant from the premises under the
provisions of Section 13(1)(e) of the Rent Act.
26. With respect to the issue of arrears, the Trial Court and the
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Appellate Court have come to the conclusion that the rent is
remained due from 01.11.1969 to 29.02.1980 that is 124 months.,
the statutory notice under the provisions of Section 12 was served
on the partners of the firm and after service of the said notice, the
defendant no.1 and the partners of defendant no.1 did not pay the
amount of rent demanded in the notice. Moreover, the partners of
the firm did not pay the rent in the Court at the time of filing their
written statement and the only ground that defendant no.1 and the
partners of defendant no.1 have taken is that prior to demand notice
and after service of demand notice, the demanded rent was
tendered by defendant no.9-Company which was not accepted by
the plaintiff and the partners of the plaintiff firm have insisted in
the written statement that they are ready and willing to pay the rent,
if the plaintiff accepts the rent from defendant no.9-Company.
27. The fact remains that the Company is a juristic person different
from its directors and defendant no.9 is not the tenant of the
plaintiff and therefore, the Trial Court and the Appellate Court
have rightly come to the finding that the partners of the defendant
no.1-firm were liable to pay the rent, but they denied to pay and
therefore, the Trial Court and the Appellate Court have not
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committed any error in holding that, the defendant nos.1 to 8 were
tenant in arrears for more than 6 months.
28. In case of U.P.State Industrial Dev. Corpn. Ltd. Vs. Monsanto
Manufacturers (P) Ltd. reported in AIR 2015 SC 1445, held in
para nos.4, 11 and 21 as under:-
"4. The questions that arise for our
consideration in these appeals are:
(i) Whether by the alleged action the
respondents-Companies directly or
indirectly had transferred or parted with
their interest/benefit under their respective
agreements for licence.
(ii) Whether the respondents-Companies
violated the terms as contained in Clause
4(h) of agreement and Clause 3(p)of their
lease deed and
(iii) Whether the respondents-Companies
are liable to pay transfer fee for alleged
transfer of its own interest.
11. The Civil Judge, Bulandshahr vide judgment
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and decree dated 23rd January, 1999 allowed the
suit and directed the appellant-Corporation not
to charge transfer levy from the respondent-
Company. The Civil Judge, held that the
respondent-Company is a legal person and
disposal of its majority shares in the name of a
foreign Company namely Rotar India Ltd. does
not change the legal status of the Company and
therefore, there is no transfer.
21. Clause 4(h) of the licence agreement prohibits
licensee's acts to directly or indirectly transfer,
assignment, sale, encumber or part with its
interest under the benefit of the said Agreement
without previous consent in writing of the
Grantor, relevant portion of which reads as
follows:
"4(h). That the Licence will not directly or
indirectly transfer, assign, sell, encumber
or part with its interest under or the
benefit of this Agreement or any part
thereof in any manner whatsoever without
the previous consent in writing of the
Grantor and it shall be open to the
Grantor to refuse such consent or grant
the same subject to such conditions as
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may be laid down by the Grantor in the
behalf.""
29. In case of Ms.General Radio & Appliances Co. Ltd. V.
M.A.Khader reported in AIR 1986 SC 1218, held in para nos.13
and 14 as under:-
"13. We have already stated hereinbefore
that the 1st appellant company, the tenant,
has transferred their interest in the tenanted
premises to the appellant No. 2 company on
the basis of the order made by the High Court
of Bombay in Company Petition No. 4 of
1968 sanctioning the scheme submitted to it
by the transferor company. We have also held
that this is not an involuntary transfer by
operation of law, but a transfer of the interest
of the tenant company on the basis of their
application made before the said High Court
in the said Company Petition. Furthermore,
we have also held that the Andrha Pradesh
Bulidings (Lease, Rent and Eviction) Control
Act, 1960 which is a special Act provides
specific grounds for termination of a tenancy
and eviction of the tenant in S. 10(ii)(a) i.e.
on the ground of subletting and/or
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transferring the interest of the tenant either in
whole or any part of the tenanted premises to
another person. Thus the Act prohibits in
specific terms both subletting as well as the
transfer or assignment of the interest of the
tenant. Moreover clause 4 of the rent
agreement executed by the 1st appellant
expressly prohibits subletting of the tenanted
premises without the express consent of the
landlord. The transferor company in this case
has undoubtedly been dissolved and the
company has ceased to exist for all practical
purpose in the eye of law. All the interest of
the transferor company including possession
in respect of the tenanted premises have been
transferred to the transferee company in
contravention of the provisions of the said
Act as well as in contravention of the terms
and conditions of the said rent agreement
thereby making the transferee company liable
to be evicted from the tenanted premises.
14. It has been observed by Subba Rao, J. in
the case of Venkatarama Iyer v. Renters Ltd.,
[1951] II M.L.R. 57 as follows:
"The Madras Buildings (Lease and Rent)
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Control Act applies not only to residential and
non- residential buildings, but also to same
buildings used for both purposes. If a
Company doing business in a particular
premises (taken on lease) transfers its business
as a going concern to another company and
also the net assets for consideration and
thereafter the transferee company takes over
the business and carries on business in the
premises let out to the former company it
cannot be said that there was no transfer of
the right of the former company under the
lease to the latter company. On such transfer
the tenant is liable to be evicted."
30. In case of Singer India Ltd. V. Chander Mohan Chadha
reported in AIR 2004 SC 4368, held in para nos.12 as under:-
"12. Madras Bangalore Transport Co.
(West) vs. Inder Singh and others 1986(3)
SCC 62 cited by Shri Divan, does not
advance the case of the appellant either as,
here, the Court on the basis of material on
record found as a fact that the Limited
Company was formed with the partners of
the existing tenant firm as Directors and
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both the firm and the company were
operating from the same place, each acting
as agent of the other. It was also found as a
fact that the company was only an 'alter ego'
or a 'corporate reflection' of the tenant firm
and the two were for all practical purposes
having substantial identity and,
consequently, there was no sub-letting,
assignment or parting with possession of the
premises by the firm to the company so as to
attract Section 14(1)(b) of the Act. This case
has been decided purely on facts peculiar to
it and no principle of law has been laid
down. The position in Hindustan Petroleum
Corporation Ltd and another vs. Shyam Co-
operative Housing Society and others
1988(4) SCC 747 cited by learned counsel
for the appellant has hardly any application
here. It is not a case of amalgamation of two
companies but acquisition of undertaking of
a Foreign Company by the Central
Government. Section 5 of Esso (Acquisition
of Undertakings in India) Act, 1974
provided that where any property is held in
India by Esso under any lease or under any
right of tenancy, the Central Government
shall, on from the appointed day be deemed
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to have become the lessee or tenant, as the
case may be, in respect of such property as
if the lease or tenancy in relation to such
property had been granted to the Central
Government, and thereupon all the rights
under such lease or tenancy shall be deemed
to have been transferred to and vested in the
Central Government. In view of this
statutory provision, the Central government,
by operation of law, became the tenant of all
such properties which were being held by
Esso under any lease or any right of
tenancy. There is no statutory enactment
here which may give any kind of protection
to the appellant."
31. Therefore, on the basis of overall basis of the material on record,
on the basis of conclusion that has been referred to by the
Appellate Court, the Court is of the opinion that there is no
material irregularity nor any perversity reflecting which would
permit this Court to exercise revisional jurisdiction. The entire
reasoning of the Appellate Court at the findings are based upon
clear analysis of the testimony of the witnesses for either side and
also in consonance with documentary material and according to
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this Court it cannot be said that there is any perversity in the said
order. Moreover, while deciding the Revision Application by the
High Court in revisional jurisdiction under this Act is confined to
find out that findings of fact recorded by the courts below is
according to law and does not suffer from any abuse of law. The
findings recorded by the Appellate Court, if perverse or has been
arrived at without consideration of material evidence or such
finding is based on no evidence or misreading of evidence or
grossly erroneous that, if allowed to stand, would result in gross
miscarriage of justice, the same is open for correction because it is
not treated as finding according to Law and in that event the High
Court, in exercise of its revisional jurisdiction under the Bombay
Rent Act, is entitled to set aside the impugned order as being not
legal or proper but in the present case, the Appellate Court has
rightly reappreciated the facts and come to a finding that defendant
nos.1 to 8 were the tenant of the said property and the defendant
nos.1 to 8 are tenant in arrears and have sublet the premises to
defendant no.9.
32. The High Court can not interfere with the finding of facts recorded
by the first Appellate Court. The consideration or examination of
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the evidence by the High Court in revisional jurisdiction under this
Act is confined to find out that finding recorded by the courts
below is according to Law and does not suffer from any error of
Law and only if the finding of facts recorded by the courts below,
is perverse or has been arrived at without consideration of the
material evidence or that such finding is based on no evidence, or
misreading of the evidence, or is grossly erroneous that, if allow to
stand, it would result in gross miscarriage of justice and the same is
open to correction as the same is not treated as findings according
to Law and in the present case, the finding of facts recorded by the
trial Court and the appellate Court is neither perverse nor arrived at
without consideration of the material evidence. In the present case,
in revisional jurisdiction, the High Court can not exercise its
powers as an appellate power to reappreciate or reassess the
evidence for coming to a different finding of facts. Revisional
jurisdiction is not and can not be equated with the powers of
reconsideration of all questions of fact as a court of first appeal.
33. The findings recorded by the Appellate Court below is based on
critical appreciation of the evidence led by the parties on record
and does not suffer any error or material irregularities. The
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Appellate Court has rightly come to the conclusion that the tenant
is in arrears paying rent & has sublet the suit premises and
therefore, there was no error committed by the Appellate Court
which requires any correction at the hands of the High Court in
exercise of revisional jurisdiction.
34. Under the revisional jurisdiction, the High Court is entitled to
satisfy itself as to the correctness or legality or propriety of any
decision or order impugned before it as indicated above. In view of
the aforesaid facts and proposition of law and in view of the
concurrent findings of fact by both the Courts below, since no case
is made out to call for any interference in the judgment and order
passed by the appellate Court upholding the judgment and decree
passed by the trial Court, the present Revision Application requires
to be dismissed and it is dismissed accordingly.
(SANJEEV J.THAKER,J)
URIL RANA
