Kerala High Court
Bijoy Mathews vs Bharat Petroleum Corporation Limited on 18 October, 2012
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934
OP(C).No. 4351 of 2012 (O)
--------------------------
AGAINST THE ORDER IN IA.NO.6700/2011 IN OS.91/2010 of II ADDL.SUB
COURT,ERNAKULAM.
PETITIONER(S):
-------------
BIJOY MATHEWS, AGED 52 YEARS,
S/O.P.M.MATHEWS, MOUNT HAVEN, KAKKANAD.P.O.
ERNAKULAM.
BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR
SRI.P.VISWANATHAN.
RESPONDENT(S):
--------------
BHARAT PETROLEUM CORPORATION LIMITED,
HAVING ITS REGISTERED OFFICE AT BHARAT BHAVAN,
4 & 6, CURRIMBHOY ROAD, BALLARD ESTATE,
MUMBAI-400 001 AND HAVING ITS BRANCH OFFICE AT
ERNAKULAM TERRITORY (RETAIL) OFFICE,
IRIMPANAM INSTALLATION, KOCHI-682 309.
REPRESENTED BY ITS TERRITORY MANAGER (RETAIL) T.PEETHAMBARAN.
BY ADVS.SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 4351 of 2012 (O)
APPENDIX
PETITIONER(S) EXHIBITS :-
EXT.P1: THE TRUE PHOTOSTAT COPY OF THE AGREEMENT EXECUTED BETWEEN
THE PLAINTIFF AND DEFENDANT
EXT.P2: THE TRUE PHOTOSTAT COPY OF THE judgment PASSED IN O.S.NO.91
OF 2010 IN SUB COURT, ERNAKULAM.
EXT.P2(A): THE TRUE PHOTOCOPY OF THE DECREE PASSED IN OS NO.91 OF 2010
IN SUB COURT, ERNAKULAM.
EXT.P3: THE TRUE PHOTOSTAT COPY OF THE DOCUMENT MARKED AS EHXIBIT B2
IN THE JUDGMENT IN OS NO.91 OF 2010
EXT.P4: THE TRUE PHOTOSTAT COPY OF THE DOCUMENT MARKED AS EXHIBIT A2
IN THE JUDGMENT IN OS NO.91 OF 2010
EXT.P5: THE TRUE PHOTOSTAT COPY OF THE DOCUMENT MARKED AS EXHIBIT A3
IN THE JUDGMENT IN OS NO.91 OF 2010
EXT.P6: THE TRUE PHOTOSTAT COPY OF IA.NO.6700 OF 2011
EXT.P7: THE TRUE PHOTOSTAT COPY OF THE DRAFT LEASE DEED PRODUCED
ALONG WITH I.A.NO.6700 OF 2011
EXT.P8: THE TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY THE
DEFENDANT TO THE DRAFT LEASE DEED
EXT.P9: THE TRUE PHOTOSTAT COPY OF THE ORDER DATED 18.10.2012 IN
I.A.NO.6700/2011 IN O.S.NO.91/2010 SUB COURT, ERNAKULAM.
EXT.P10: THE TRUE PHOTOSTAT COPY OF THE REVISED DRAFT SUBMITTED ON
29.10.2012 IN SUB COURT, ERNAKULAM.
EXT.P11: THE TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY THE
DEFENDNT TO THE DRAFT LEASE DEED IN SUB COURT, ERNAKULAM.
EXT.P12: THE CARBON COPY OF THE ORDER DATED 9.11.2012 IN SUB COURT,
ERNAKULAM.
RESPONDENTS' EXHIBITS : NIL.
//TRUE COPY//
P.A TO JUDGE
amk
THOMAS P. JOSEPH, J.
=====================
Original Petition (civil)) No. 4351 of 2012
==============================
Dated this the 3rd day of January, 2013
JUDGMENT
The defendant in O.S. No. 91 of 2010 of the Sub Court, Ernakulam is the petitioner, aggrieved by Ext.P12, proceeding dated 09.11.2012 to the extent it exceeded the directions contained in Ext.P2 and P2(a), judgment and decree, respectively.
2. The respondent obtained a decree for specific performance of an agreement to execute a registered lease deed in respect of the suit property for the period from 24.10.2009 to 31.05.2029 subject to the terms and conditions mentioned in the judgment and decree.
3. Pursuant to that judgment and decree, the respondent filed Ext.P6, application and Ext.P7, draft lease deed which included, apart from the terms and conditions stipulated in Ext.P2 and P2(a), that the respondent is entitled to remove the existing structure by paying its value. That was allowed by Ext.P12. The petitioner is aggrieved by the said direction in O.P.(C) No. 4351 of 2012 2 Ext.P12, proceedings.
4. It is contended by the learned counsel for the petitioner that the lease deed could be executed only in accordance with the terms and conditions provided in Exts. P2 and P2(a) and that the court while executing the registered lease deed has no power to go beyond the directions contained in Ext.P2 and P2(a). It is also argued that the question whether the existing structure is liable to be removed, repaired etc. are matters to be governed by the provisions of Sec. 108 of the Transfer of Property Act (for short, "the T.P. Act"). Hence it is argued that Ext.P1, proceeding to the extent it exceeded the power conferred under Exts. P12 and P2(a) is illegal.
5. According to the learned Senior Advocate for the respondent, the canopy now in existence is in a dilapidated condition and without its removal, the petrol bunk cannot be operated effectively and therefore removal of that canopy must be understood as inbuilt in the direction in Ext.P2 and P2(a).
6. As per Ext. P2 and P2(a), the petitioner has to execute a registered lease deed for the period aforesaid for a monthly rent of Rs.35,000/- with enhancement of 25% every 5 years. The lease deed has to be executed within two months from the date O.P.(C) No. 4351 of 2012 3 of Exts.P2 and P2(a). In case the petitioner failed to do so, the respondent was given right to get the lease deed executed and registered execute and register the lease deed through court.
7. The terms and conditions of the lease deed can only be in accordance with the directions in Exts. P2 and P2(a). Therefore, I am in agreement with the contention raised by the learned counsel for the petitioner that the lease deed to be executed and registered could not provide for removal of the existing structure, be it on payment of its value to the petitioner. To that extent, Ext.P12, proceeding cannot be sustained.
8. However, the learned counsel for the petitioner and the learned Senior Advocate for the respondent have agreed that having regard to the requirement of the respondent and the present, dilapidated condition of the canopy, the respondent can remove the canopy and install a new canopy on condition of the respondent paying the value of the existing canopy as may be assessed by an approved valuer.
9. It is also agreed by the learned counsel on both sides that the respondent shall not have any right to remove, alter or modify the existing building and that right of the respondent to effect repairs and maintenance to that building shall be in O.P.(C) No. 4351 of 2012 4 accordance with Sec.108 of the T.P.Act.
10. In the light of the above, I am inclined to modify Ext.P12, proceeding of the learned Sub Judge.
11. Resultantly, the original petition is allowed in part as under:
1) The direction contained in Ext.P12, proceeding dated 09.11.2012 on I.A No. 6700 of 2011 in O.S. No. 91 of 2010 of the IInd Additional Sub Court, Ernakulam as to the entitlement of the respondent to remove the existing structure on payment of value is set aside.
2) The lease deed shall be executed and registered in accordance with the terms and conditions stipulated in Ext.P2 and P2(a).
3) As agreed by the learned counsel on both sides, the respondent is permitted to remove the existing canopy at its expense on condition that it shall pay the value of the existing canopy as may be assessed by an approved valuer (at the instance of the respondent) to the petitioner.
4) So far as repairs and maintenance of the new canopy permitted to be put up by the respondent is concerned, it is made clear that it is open to the O.P.(C) No. 4351 of 2012 5 respondent to effect such repairs and maintenance during the period of lease.
5) The respondent shall not remove, alter or modify the existing building.
6) Repairs and maintenance if any to the said building shall be governed by the provisions of Sec. 108 of the T.P. Act.
7) It is made clear that it is open to the respondent to incorporate in the lease deed to be executed and registered, the terms and conditions stipulated in Ext.P2 and P2(a) and the other directions this court had made above based on the consent between the parties.
THOMAS P.JOSEPH, JUDGE smv O.P.(C) No. 4351 of 2012 6 //True copy// P.A. To Judge