Bombay High Court
Ambrosia Restaurants Pvt Ltd vs Sunita Dileep Nevatia And Anr And Harish ... on 20 December, 2019
Author: A.K. Menon
Bench: A.K. Menon
sbw
nms-1445-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1445 OF 2019
IN
SUIT NO.409 OF 2019
Harish Loyalka & Anr. .. Applicants
(Proposed Defendants)
In the matter of
Ambrosia Restaurants Pvt. Ltd. .. Plaintiffs
Vs.
Smt. Sunita Nevatia & Anr. .. Defendants
WITH
NOTICE OF MOTION NO.972 OF 2019
WITH
NOTICE OF MOTION NO.541 OF 2019
Dr. Abhinav Chandrachud a/w Datta Mane i/b. Pradeep Havnur for the
plaintiff-original plaintiff.
Mr. Kalpesh Joshi a/w Paras Shah for the defendants.
Mr. Gaurav Joshi Senior Advocate a/w Ms. Neeta Jain and Avinash Joshi i/b.
Mulla & Mulla C.B.C. for the applicant in NMS/1445/2019.
CORAM : A.K. MENON, J.
DATED : 20TH DECEMBER, 2019.
P.C. :
1. By this motion, the applicants seek to intervene in the present suit and all other proceedings by being impleaded as party defendants. The applicants are the Executors of the last Will and testament dated 17 th June, 2009 and Trustees of the estate of late Smt. Snehalata Nevatia 1/8 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 22/12/2019 00:57:20 ::: nms-1445-19.odt who is said to be the owner of the suit premises viz. East & West Wing i.e. the entire third floor of Udyog Bhavan, 250-D, situate at Worli, Mumbai.
2. The case of the applicant and as canvassed by Mr. Joshi is that they were surprised to learn, from the website of this Court, filing of the present suit and that the defendants have executed a leave and license agreement dated 7th October, 2017 with the plaintiff in relation to the third floor of the suit premises. He submitted that this Court has no jurisdiction to try the present suit. He submits that the suit is liable to be dismissed by virtue of provisions of Section 41(1) of the Presidency Small Cause Courts Act under which the Court of Small Causes has exclusive jurisdiction to adjudicate any dispute that may arise between a licensor and licensee. Since the plaintiff is claiming under a leave and license agreement, it is contended that this Court has no jurisdiction to entertain this suit and that neither the defendants nor the plaintiffs are entitled to any orders from this Court.
3. Mr. Joshi also made reference to the fact that the younger son of the deceased testatrix, one Shishir Nevatia has filed a suit for administration of the estate of late Smt. Snehalata Nevatia in this Court and that suit is pending. The plaintiff has not made any enquiries nor conducted any due diligence before claiming under the license 2/8 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 22/12/2019 00:57:20 ::: nms-1445-19.odt agreement or before entering into the license agreement. Basic enquiries would have revealed that the premises were owned by the deceased testatrix and part of her estate.
4. Mr. Joshi has taken me through the various factual aspects in support of his contention that the deceased was the owner of the suit premises.
According to Mr. Joshi, the plaintiffs and the defendants have no right to intermeddle with the estate of the deceased and that the defendants are necessary party and are required to be impleaded since the suit property is part of the estate of the deceased which are executors and they are expected to administer.
5. Mr. Joshi also submitted that the defendant no.2 in the instant case had no right, title or property in the suit property since it is a part of the estate of the deceased testatrix, and he had no right to grant license in the first place and no legal right to put the plaintiff in possession even assuming the case of the plaintiff be correct. The defendants were not in juridical possession and hence no valid license could have been granted.
6. Dr. Chandrachud on behalf of the defendants opposed the application contending that the application has no merit in view of the fact that the ownership with the property is not relevant for a suit under Section 3/8 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 22/12/2019 00:57:20 ::: nms-1445-19.odt 6 of the Specific Relief Act under which the plaintiff who is dispossessed from property in his occupation by any person whether or not the legal owner can be proceeded against in an application for restoration of possession. He submitted that the plaintiff has fully complied with the requirement of law and is entitled to avail of the remedy under Section 6. He submitted that the executors have no role to play in the present suit. In support of his contention, he relies upon decisions of this Court in Faijulbee Hajeel and others v/s. Yadali Amir Shaikh Ansari1 and a decision of the Supreme Court in Mansukhlal Dhanraj Jain and others v/s. Eknath Vithal Ogale 2.
7. This matter has been taken up for hearing despite the pendency of earlier Notices of Motion no.972 of 2019 and 541 of 2019 in view of the order passed by this Court in the Notice of Motion (L)no.52 of 2019 dated 4th March, 2019 by which this impleadment application is to be heard and disposed. I have accordingly proceeded to hear the learned counsel for the parties and I am of the view that in a suit under Section 6 and considering the averments in the plaint, the applicant is neither the necessary nor a proper party. The suit essentially is one by which the plaintiffs, a company, claims to have approached the defendants and obtained a license in respect of a suit premises. The license is seen to have been executed between the 1 AIR 1984 Bom. 290 2 (1995) 2 SCC 665 4/8 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 22/12/2019 00:57:20 ::: nms-1445-19.odt parties on 7th October, 2017 and the averments of the plaint are to the effect that the plaintiffs have been put in possession and had carried out work on the interiors of the premises wherein they were planning to start a restaurant. They were surprised to receive a notice from the plaintiffs calling upon them to pay license fees and taxes and alleging breach of the license agreement.
8. The case of the plaintiffs that keys of the premises was kept with the security guard of the society and the plaintiffs were in the process of obtaining an Eating House License. On 29 th October, 2018 the defendants unilaterally terminated the agreements. The plaintiffs have alleged trespass by the defendants and later learnt that the defendants had been advertising very same premises for being let out. The plaintiffs have claimed that they were dispossessed by the defendants who instructed the watchman not to handover keys of the suit premises thus preventing entry of the plaintiff and the defendants were attempting to let out the premises to a third party after withholding keys from the plaintiffs, who claim to have spent more than Rs.3.5 crores in anticipation of commencement of business. It is in this background that one must consider whether the present applicants are entitled to impleaded in the present suit.
9. I am of the view that the applicants have failed to make out a case for 5/8 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 22/12/2019 00:57:20 ::: nms-1445-19.odt impleadment in the present suit. The Division Bench in the in case of Faijulbee Hajeel (supra) had occasion to consider a dispute arising between the parties under a suit under Section 6 of the Specific Relief Act based on the allegation of dispossession and seeking recovery of possession. The court has held that the suit would continued to be within the jurisdiction of the Civil Court despite the fact that the parties may fulfill the character of landlord and /or tenant or a licensor or a licensee and expressly holding that the Court of Small Causes will not have jurisdiction to entertain a suit under Section 6. The facts in the present case also reveal and as held in the case of Mansukhlal Jain (supra), the suit seeks a specific summary remedy to seek restoration of possession from the defendant within six months of being dispossessed. The Court has held that it is factually a possessory suit where a status of the party is irrelevant and in such a suit the plaintiff is not required to prove his title or superior right to possession. The defendant is only required to show that he was in possession of the suit immovable property and that he was illegally dispossessed within six months prior to the date of the suit. Once this is established, he is become entitled to succeed and can seek status quo ante and restoration of possession.
10. A fair reading of the judgments in Faijulbee Hajeel and Mansukhlal 6/8 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 22/12/2019 00:57:20 ::: nms-1445-19.odt Jain (supra) will clearly establish the fact that Section 41 specifically lays down that a suit between the licensor and a licensee or a landlord and a tenant relating to recovery of possession must be filed in the Court of Small Causes and such a suit necessarily means a suit by a licensor as a licensor and by licensee as a licensee or against the licensor or licensee as such licensor or licensee. Likewise a suit between the tenant and landlord must be between those persons in their capacities and it is only such a suit is governed by Section 41 of the Small Cause Courts Act. In the present case, the plaintiff is seeking to recover possession of the property of which the plaintiff is allegedly dispossessed and it is for this Court to consider whether it can grant appropriate relief in the suit.
11. In view of the aforesaid position in law, I am of the view that the applicants as executors of the Will of the late Smt. Snehalata Nevatia are not entitled to be impleaded in the present suit. The pendency of other proceedings in relation to the estate of the deceased such as the suit for administration of the estate of Smt. Snehalata filed by other son of the deceased is not relevant for the purposes of considering the present application. Suffice it to say that in the facts and circumstances, the applicants are neither the necessary nor proper parties and for that reason this application cannot succeed. 7/8 ::: Uploaded on - 21/12/2019 ::: Downloaded on - 22/12/2019 00:57:20 :::
nms-1445-19.odt
12. In view thereof, I pass the following order;
(i) Notice of motion is dismissed.
(ii) No orders as to costs.
(iii) In view of the disposal of the Notice of Motion no.1445 of 2019, list
the pending Notices of Motion for hearing.
(iv) Ad-interim order dated 15th November, 2019 to continue till
further orders.
(v) List under the caption of ad-interim relief on 15 th January, 2020.
(A.K.MENON, J.)
wadhwa
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