Bombay High Court
Sanjog Sadanand Parab vs B.P.Gharda & Co on 21 June, 2012
Equivalent citations: AIR 2013 (NOC) 175 (BOM.), 2013 (2) ABR 1052, (2013) 7 ALLMR 627 (BOM), (2012) 5 BOM CR 258
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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SJ445_07
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMONS FOR JUDGMENT NO. 445 OF 2007
IN
SUMMARY SUIT NO. 29 OF 2004
(UNDER THE PROVISIONS OF ORDER XXXVII OF THE CODE OF CIVIL
PROCEDURE, 1908)
Sanjog Sadanand Parab )
of Mumbai, Indian Inhabitant, )
residing at Sushila Mahal, Ground )
Floor, 513, H.R.Mahajani Road, )
Matunga, Mumbai 400 019 ) ..... Plaintiff
VERSUS
1. B.P.Gharda & Co., Chartered )
Accountants, a Partnership Firm )
having its office at Agra Building )
121, M.G.Road, Fort, Mumbai )
400 023 )
2. B.P.Gharda, )
Partner of B.P.Gharda & Co., )
Chartered Accountants, having his )
office at Agra Building 121, M.G. )
Road, Fort, Mumbai 400 023 )
3. Subodh Mody )
Partner of B.P.Gharda & Co., )
Chartered Accountants, having his )
office at Agra Building 121, M.G. )
Road, Fort, Mumbai 400 023 )
4. Minaxi Venilal Doshi )
Partner of B.P.Gharda & Co., )
Chartered Accountants, having his )
office at Agra Building 121, M.G. )
Road, Fort, Mumbai 400 023 ) ..... Defendants
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SJ445_07
Mr. Pradeep Sancheti, Senior Advocate with Mr.Phiroze Colabawala and
Mr.S.A.K.Najam-Es-Sani, i/b. M/s.Maneksha & Sethna for the Plaintiff.
Mr.M.L.Palan with Mr.Zahid Khatri and Mr.Tanveer Patel, i/b. M.K.Khatri & Co. for
Defendant Nos. 1, 3 and 4.
CORAM : R.D. DHANUKA, J.
DATE : 21 st
JUNE, 2012.
ORAL JUDGMENT :
The Plaintiff has filed this suit for recovery of security deposit, interest and for the cost of the suit. It is not in dispute that the Plaintiff had given interest free security deposit to the Defendants which was refundable upon the Plaintiff handing over the vacant possession of the premises given on leave and licence to the Plaintiff by the Defendants.
2. During the period between 9th September, 1995 and 9th February, 1998, the Plaintiff deposited a sum of Rs.1,83,000/- as security deposit for the use of the premises on leave and licence basis with the Defendants. The Defendants by their letter dated 31st March, 1998 addressed to the Plaintiff had acknowledged the same. It is the case of the Plaintiff that the Plaintiff vacated the premises and handed over the same to the Defendants on 12th October, 1999. It is the case of the Plaintiff that out of the said sum of Rs.1,83,000/- deposited by the Plaintiff as security deposit with the Defendants, an amount of Rs.30,000/- towards the licence fee in the month of August 1999, September 1999 and October 1999 has ::: Downloaded on - 09/06/2013 18:41:27 ::: kvm 3 SJ445_07 been deducted and adjusted against the said deposit of Rs.1,83,000/- and the same has been acknowledged and confirmed in the ledger account of the Plaintiff in the books of the Defendants.
3. It is the case of the Plaintiff that from time to time the Plaintiff has also made separate payment to the Defendants in respect of the electricity charges and the same has been acknowledged by the Defendants from time to time in various statements as well as in the correspondence.
4. It is the case of the Plaintiff that on or about 15th May, 2000, the Defendants refunded only a sum of Rs.25,000/- as against Rs.1,53,000/- after deducting the sum of Rs.30,000/- towards licence fee for the month of August 1999, September 1999 and October 1999 and refused to pay the balance amount. The Plaintiff accordingly by his advocates' letter dated 8th May, 2003 called upon the Defendants to refund the said amount. The Defendants by their advocates' letter dated 10th May, 2003 denied the claim and contended that the Plaintiff had failed to pay the licence fee, electricity charges alleged to be due to the Defendants and instead of paying dues to the Defendants, the Plaintiff has chosen to instruct his advocate to raise a demand. According to the Plaintiff since the Defendants did not pay the balance amount, the Plaintiff filed this suit on 13th May, 2003 for recovery of Rs.1,28,000/- with cost. Writ of Summons was served upon the ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 4 SJ445_07 Defendants. There was delay in filing Vakalatnama by the Defendants. The Defendants thereafter took out Chamber Summons seeking condonation of delay in filing Vakalatnama. The said Chamber Summons was allowed by this Court.
The Plaintiff thereafter took out Summons for Judgment.
5. The Defendants have filed affidavit in reply and have raised various pleas opposing Summons for Judgment. In para 17 of the affidavit in reply, the Defendants have raised plea of jurisdiction in respect of the suit filed by the Plaintiff in view of provisions of Section 41 of the Presidency Small Courts Act.
Considering this plea raised in the affidavit in reply R.Y.Ganoo, J passed an Order dated 30th September, 2010. It was the case of the Plaintiff that since the Plaintiff has already handed over the possession of the flat under the leave and licence agreement to the Defendants and the suit was filed for the recovery of security deposit, suit would not fall within the provisions of Section 41 of the Act. The Plaintiff relied upon the Judgment of this Court in the case of RMC Readymix (I) Pvt. Ltd. vs. Kanayo Khubchand Motwani1. Shri R.Y.Ganoo, J., however did not agree with the view taken by this Court in the said Judgment in the case of RMC Readymix (I) Pvt. Ltd. (supra) and directed the Registrar (Judicial) to place the papers before the Hon'ble the Chief Justice for appropriate directions and raised following points to be decided by the Larger Bench :
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(a) Whether the suit for recovery of security deposit filed by a licensee against the licensor in Bombay would fall within the ambit of the term 'relating to recovery of licence fee or charges or rent thereof' appearing in Section 41(1) of the Presidency Small Causes Court Act, 1882 ?
6. This Summons for Judgment was thereafter heard by the Division Bench of this Court. By an Order dated 25th April, 2011 passed by the Division Bench of D.K.Deshmukh and Anoop V.Mohta, JJ, it was held that the question referred by the Learned Single Judge does not really arise for consideration at this stage and directed the office to place the papers before the Learned Single Judge.
7. The Learned Counsel appearing for the Defendants submit that this suit for recovery of security deposit would fall within the ambit of Section 41 as it relates to the recovery of licence fee, electricity charges thereof and therefore this court will not have jurisdiction to try and entertain this suit and the exclusive jurisdiction vest with the Small Causes Court. The Learned Counsel submitted that Shri R.Y.Ganoo J. has already deferred with the view of this court reported in the case of RMC Readymix (I) Pvt. Ltd. (supra). This suit is without jurisdiction and therefore in any case unconditional leave should be granted on that ground alone.
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8. It would be appropriate to refer to few paragraphs of the Order of the Division Bench strongly relied upon by the Learned Senior Counsel appearing for the Plaintiff. Para (12) of the said Order dated 25th April, 2011 passed by the Division Bench reads thus :-
12. The present suit is, on the basis of the averments in the plaint, is a suit by the erstwhile tenant or licencee for recovery of the amount of unpaid security deposit and therefore if one goes by the averments in the plaint and provisions of section 41, this court will have the jurisdiction to entertain the suit. It is further to be seen that the learned single Judge was in the present case considering the Summons for Judgment. When the court is hearing Summons for Judgment question that the court is considering whether on the basis of the defence that is put up by the defendants, the defendant is entitled to either unconditional leave to defend or conditional leave to defend or the defendants is not entitled to any leave to defend. No issues are to be decided by the court because no issue arise at this stage. The issues in the suit arise only after written statement is filed by the defendants. When the Court is considering the Summons for Judgment what the court is really considering is whether the defendants is to be permitted to file written ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 7 SJ445_07 statement or not ?
9. It is thus clear from the Order passed by the Division Bench that present suit is filed on the basis of recovery of the amount of security deposit and considering the averment in the plaint and provision of Section 41, this Court will have jurisdiction to entertain the suit.
10. The Learned Counsel appearing for the Plaintiff invited my attention to paragraphs 4, 5, 9 and 11 in support of his plea that the suit was for recovery of refund of security deposit and this Court has therefore jurisdiction to entertain and try this suit. In my view, the issue of jurisdiction has to be decided on the basis of the averments made in the plaint and not the defence raised in the affidavit in reply. I am therefore of the view that this Court has jurisdiction to entertain, try and dispose of this suit as relief claimed therein is for refund of security deposit and therefore this suit does not fall under Section 41 of the Presidency Small Cause Courts Act, 1882. I, therefore, reject this submission made by the Learned Counsel appearing for the Defendants.
11. The next submission raised by the Defendants in the affidavit in reply and more particularly in para (19) is that the suit is barred by law of limitation and that, there is no cause of action to file the present suit. In my opinion, since the ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 8 SJ445_07 Defendants have refused to return the security deposit though the Plaintiff has handed over the possession of the premises to the Defendant under leave and lincence, the Plaintiff has rightly filed this suit for refund of security deposit and therefore there is no substance in the plea that there is no cause of action to file the present suit.
12. In so far as plea of limitation raised in the reply is concerned, in my view, this plea raised by the Defendants is a bald plea and without any details showing as to how claim is barred by law of limitation and more particularly when Plaintiff has set out sequence of events in the plaint justifying that claim is within limitation. Once Plaintiff has demonstrated that claim is within time, onus to prove that claim is time barred is shifted on the Defendants which they have failed to discharge. Even otherwise on the facts of this case, I am of the view that suit is filed within time. The Plaintiff has handed over the possession of the premises to the Defendant on 12th October, 1999. It is the case of the Plaintiff that Defendants had refunded only a sum of Rs.25,000/- out of the security deposit lying with the Defendants on 15th May 2000 leaving the balance of Rs.1,28,000/-.
In affidavit in reply in para (11), the Defendants have raised that the Plaintiff being the friend of the deponent of the said affidavit, saw that the Plaintiff was in miserable financial condition and requested the Defendants for help and therefore the Defendant paid a cheque of Rs.25,000/- on 15th May, 2000. I am unable to ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 9 SJ445_07 accept this plea raised by the Defendants in para (11) that an amount of Rs.
25,000/- was paid as a financial help to the Plaintiff. On one hand the Defendants have pleaded that no amount was due and payable to the Plaintiff and that the Defendants had to recover the substantial amount from the Plaintiff and on the other hand claims to have been given financial help to the Plaintiffs. It is obvious that the said amount of Rs.25,000/- was paid on 15th May, 2000 was towards the part refund of security deposit. It is the case of the Plaintiff that since the Defendants refused to pay the balance amount of Rs.1,28,000/-, the Plaintiff by advocate's letter dated 8th May, 2003 called upon the Defendants to refund the security deposit. The Defendants by their letter dated 10th May, 2003 for the first time denied the refund of security deposit. The Plaintiff filed a suit on 13th May, 2003. Even if the letter addressed by the Plaintiff demanding the refund of security deposit and the letter addressed by the Defendants refusing to pay is not considered, in view of the part payment made by the Defendants on 15th May 2000, it is clear that the suit as filed on 13th May, 2003 is within time and not barred by law of limitation. I am therefore of the opinion that there is no substance in the plea raised by the Defendant that the suit is barred by law of limitation.
13. In para (2) of the affidavit in reply, the Defendants have raised plea that there is delay and latches on the part of the Plaintiff in taking out the Summons ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 10 SJ445_07 for Judgment and therefore on this ground alone, the Summons for Judgment is liable to be dismissed with costs or in the alternative the Defendants are entitled for unconditional leave to defend the suit. On the other hand, the Learned Counsel appearing for the Plaintiff submitted that there was gross delay in filing Vakalatnama on the part of the Defendants and the Chamber Summons was taken out by the Defendants seeking condonation of delay in filing Vakalatnama. The said Chamber Summons was allowed by this Court and delay in filing Vakalatnama was condoned. The Plaintiff thereafter took out Summons for Judgment.
14. Rule 227 of the Bombay High Court (Original Side) Rules, reads thus :-
R.227. When no decree applied for within six months.- If the Plaintiff does not apply for a decree within six months after the filing of the plaint, the suit shall be set down for dismissal on the board of the Judge in Chambers. The Prothonotary and Senior Master shall notify on his notice board the date on which the suit is to be so set down and shall do so at least eight days before such date. If the plaintiff is appearing in person, the Prothonotary and Senior Master shall give notice of the date to the plaintiff by sending a letter to him by post under certificate of posting.::: Downloaded on - 09/06/2013 18:41:28 :::
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15. Rule 227 set out aforesaid has been interpreted and dealt with by this Court. It has been held that even if Summons for Judgment is not taken out within a period of six months from the date of filing of the Vakalatnama by the Defendant, it is at the discretion of the Court either to place the matter on Board on for dismissal of the suit or to grant unconditional leave or to condone delay and hear the matter on merits. It is also held that if the court finds that there is no substance raised in the defence on merits, the court should not exercise its discretion in dismissing the suit due to delay in taking out the Summons for Judgment. Considering para (6) of the affidavit in rejoinder filed by the Plaintiff and considering the defence raised by the Defendants and since the view I have taken that there is no substance in defence raised by the Defendants, I am satisfied with the explanation given in para (6) explaining delay in filing Summons for Judgment. I, therefore, reject this submission made by the Defendants that suit should be dismissed or that unconditional leave should be granted because of alleged unexplained delay on the part of the Plaintiff in taking out this Summons for Judgment.
16. The next plea raised by the Defendants in their affidavit in reply is that the Plaintiff was required to deposit a sum of Rs. 2 lacs as a security deposit and as the Plaintiff has no ready money available, he agreed to pay interest at the rate of 12% per annum and further agreed to pay licence fees and electricity charges. It ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 12 SJ445_07 is pleaded by the Defendants that since the Plaintiff failed to deposit Rs. 2 lacs and deposited only Rs.1,83,000/-, the Defendants became entitled to recover the interest from the Plaintiff. It is also submitted that since both the parties are relying upon the statement of accounts and there are various disputed entries in the statement of accounts relied upon by the Plaintiff, these entries could be adjudicated upon by the court only at the stage of trial and therefore summary suit is not maintainable. On the other hand, the Learned Senior Counsel appearing for the Plaintiff submitted that from the documents annexed to the affidavit in reply and the statement of accounts relied upon by the Defendants themselves, in their affidavit in reply, it can be demonstrated beyond the doubt that the defence raised by the Defendants in reply is totally false, frivolous and not bonafide.
17. The Learned Senior Counsel appearing for the Plaintiff submitted that if it is possible to point out from the documents relied upon by the Defendants itself that there is no substance in the defence, this Court need not grant leave to the Defendant to defend the suit. The Learned Senior Counsel invited my attention to the correspondence and statement of accounts relied upon by the Defendants which I will deal with in the later part of this order.
18. As far as plea of the Defendants that the Plaintiff had agreed to deposit as and by way of Rs. 2 lacs and not Rs.1,83,000/-, the Learned Counsel for the ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 13 SJ445_07 Plaintiff invited my attention to the letter dated 31st March, 1998 addressed by the Defendants to the Plaintiff acknowledging the receipt of Rs.1,83,000/- as a security deposit. The Leaned Counsel for the Plaintiff submitted that if according to the Defendants Rs.2 lacs was payable as deposit, the Defendants in ordinary course ought to have raised the demand for the balance amount of security deposit. There is not a single letter on record pointed out by the Defendants demanding the alleged deficit of Rs.17,000/- not deposited by the Plaintiff towards the security deposit. In my opinion, the plea raised in the affidavit that Plaintiff was liable to pay Rs. 2 lacs and not Rs.1,83,000/- is on the face of incorrect and frivolous and contrary to the correspondence exchanged between the Defendants and the Plaintiff. The question of claiming any interest by the Defendants therefore on the alleged short fall of Rs.17,000/- did not arise.
19. The Learned Counsel for the Defendants and Plaintiff referred the statement at page 61 annexed to the affidavit in reply. The Learned Counsel appearing for the Plaintiff submitted that from the said statement, it is clear that the demand of the Defendants though never raised by any correspondence or otherwise is for the period between 1st September, 1995 and 31st March, 1997 in the sum of Rs.84,000/- Rs.1,44,000/- and for the financial year 1997-98 to the tune of Rs.12,000/-. The Learned Counsel pointed out that though in the earlier statement relied upon by the Defendants, interest on alleged delay on payment of ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 14 SJ445_07 deposit and interest on delay on payment of licence fee and reimbursement of electricity charges was claimed in the statement. In this statement, at page 61, the same is not reflected. In any event, there is no proceeding filed by the Defendants for recovery of any such amount as reflected in the said statement. In the said statement, the Defendants had admitted to have received a sum of Rs.
3,16,000/- towards licence fee during the period between 1997 and 2000. The Defendants have also admitted receipt of security deposit to the tune of Rs.
1,83,000/-. According to the said statement relied upon by the Defendants, Defendants have to recover a sum of Rs.82,000/- from the Plaintiff.
20. The Leaned Senior Counsel appearing for the Plaintiff invited my attention to the letters and statement of accounts annexed to the affidavit in reply at pages 37, 38, 40, 42, 44, 46, 48, 52, 55 and 59. The Learned Counsel submitted that the balance amount reflected in the affidavit at page 61 towards licence fee for the period between 1st September 1995, 31st March 1997 is totally false and misleading for the reasons that the Defendants themselves by their letter dated 1 st April 1998 addressed to the Plaintiff had admitted the receipt of the advance licence fee for the sum of Rs.55,000/-commencing from 1st April 1998. In the said letter it has been categorically admitted that the said sum of Rs.55,000/- shall be adjusted per month at the rate of Rs.5,000/- towards monthly licence fee and the balance of Rs.5,000/- per month for subsequent period. Out of Rs.10,000/-, ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 15 SJ445_07 licence fee per month shall be payable by the Plaintiff on or before 15 th of each month. Document at page 56 of the affidavit in reply shows that the Defendants had forwarded a copy of the statement to the Plaintiff in which the said sum of Rs.55,000/- is being reflected as advance licence fee as on 1st April, 1998 and the sum of Rs.5,000/- has been adjusted per month out of the same for the period April 1998 to September 1998. After deducting a sum of Rs.5,000/- per month, the balance amount carried forward is reflected at Rs.25,000/-. In the statement at page 55 for the month of October 1998, the said sum of Rs.25,000/- is brought forward and a sum of Rs.5,000/- for the month of October has been adjusted out of the same showing balance of Rs.20,000/- carried forward for the subsequent month. In the statement at page 52 the said balance of Rs.20,000/- as on 1st November 1998 is reflected has been brought forward and Rs.5,000/- from the month of 15th December, 1998 has been adjusted showing the balance of Rs.
15,000/-advance licence fee to be appropriated in future. Even the said Rs.
15,000/- was brought forward as shown at page 51 and Rs.5,000/- was adjusted for the month of December, 1998. The Learned Senior Counsel also invited my attention to various statements of accounts of the Plaintiff in the books of account of the Defendant for the period 1st April 1997 to 31st March 1999 showing the opening balance at nil. The Learned Senior Counsel, therefore, submitted that if there would have been any arrear of licence fee during the period 1st September 1995 and 31st March 1997 in the books of accounts maintained by the ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 16 SJ445_07 Defendants, the opening balance would not have been shown as nil.
Simultaneously, the Defendants would not have given the credit for the licence fee for the subsequent period as is demonstrated from the correspondence and the statement of account relied upon by the Defendants themselves and the Defendants would have appropriated the deposit towards alleged licence fees for the period 1st September 1995 to 31st March 1997.
21. Though both the parties have relied upon the statement of accounts, since from the documents referred to and relied upon by the Defendants themselves, it is apparent and clear that no amount was due and payable by the Plaintiff to the Defendants to be adjusted from the amount of security deposit advanced by the Plaintiff to the Defendants, in my opinion, Defendants were not entitled to retain or appropriate the said sum of Rs.1,28,000/-. Admittedly the Plaintiff has already reduced his claim of Rs.30,000/- and has permitted appropriation for the sum against Rs.1, 83,000/- given by the Plaintiff towards the security deposit. I therefore reject the submission of the Defendants that summary suit is not maintainable in the facts of this case.
22. In my view none of the defence raised by the Defendants raises any triable issue. In my opinion each and every defence raised by the Defendants is frivolous and moon shine and is contrary to the documents relied upon by the Defendants ::: Downloaded on - 09/06/2013 18:41:28 ::: kvm 17 SJ445_07 themselves. In my view, the Defendants have filed false and misleading affidavit in this court which shows various contradictions with the documents relied upon by the Defendants themselves. The Plaintiff is, therefore, entitle to relief as claimed in the said Summons for Judgment.
23. I, therefore, pass the following order :-
a) Summons for Judgment is made absolute.
b) Suit is decreed as prayed.
c)
Refund of court fees as per rules.
[R.D. DHANUKA, J.]
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