Bombay High Court
Hemant S/O Wasudeorao Kalmegh vs Mohd. Shakil S/O Abdul Aziz on 3 July, 2012
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Appeal against Order No.158 of 2011
1. Hemant s/o Wasudeorao Kalmegh,
Aged about 41 years,
Occupation - Business.
2. Sharad s/o Wasudeorao Kalmegh,
Aged about 47 years,
Occupation - Business.
3. Pramilabai wd/o Wasudeorao Kalmegh,
Aged about 69 years,
Occupation - Household.
All R/o Hindustan Colony,
Opposite Amravati Road Post Office,
Amravati Road, Nagpur. ... Appellants/
Ori. Plaintiffs
Versus
Mohd. Shakil s/o Abdul Aziz,
Aged about 44 years,
Occupation - Business,
R/o Plot No.83, Clark Town,
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Kadbi Chowk, Nagpur, and
C/o Hotel Al Zam Zam,
Plot No.23A, Hindustan Colony,
Near University Campus,
Ambazari Road,
Nagpur. ... Respondent/
Ori. Defendant
Shri Rohit Joshi, Advocate for Appellants.
Shri F.T. Mirza, Advocate for Respondent.
CORAM : R.K. DESHPANDE, J.
Date of Reserving the Judgment : 18-6-2012
Date of Pronouncing the Judgment : 3-7-2012
JUDGMENT :
1. Admit. Heard finally by consent of the learned counsels appearing for the respective parties.
2. This appeal is preferred by the original plaintiffs ::: Downloaded on - 09/06/2013 18:43:54 ::: 3 ao158.11.odt challenging the order dated 15-11-2011 passed below application Exhibit 5 by the learned 2nd Joint Civil Judge, Senior Division, Nagpur, to the extent it rejects the prayers of the appellants-plaintiffs, viz. (i) for grant of temporary injunction restraining the respondent-defendant from continuing with the hotel business from the suit premises and making any construction activity over the suit premises, and (ii) for directing the respondent-defendant to deposit a sum of Rs.75,000/- per month in the Court with effect from 1-5-2011 till the date of delivery of possession.
3. The Trial Court has partly allowed the application for injunction, directing the respondent-defendant to deposit an amount of Rs.29,040/- per month from 1-7-2010 till the decision of the suit, and to deposit an amount of arrears as per the said rate ::: Downloaded on - 09/06/2013 18:43:54 ::: 4 ao158.11.odt for the period from 1-7-2010 to 30-11-2011 within a period of two months. The appellants-plaintiffs are granted liberty to withdraw the said amount.
4. The facts of the case are as under :
The appellants-plaintiffs claim to be the owners of the suit premises bearing Plot No.23-A, Survey Nos.43 and 46/2, admeasuring 3,067 square feet at Mouza Pandhrabodi, Hindustan Colony, Nagpur, along with the building structure standing thereon. The respondent-defendant claims to be an experienced person in running the restaurant/eating house. As per the Memorandum of Understanding dated 5-3-2002 entered into between the appellants-plaintiffs and the respondent-defendant, it was decided to jointly run the restaurant/eating house under the name and style of ::: Downloaded on - 09/06/2013 18:43:54 ::: 5 ao158.11.odt Hotel Al Zam Zam on the suit premises. It was agreed that the respondent-defendant shall provide all the technical know-how and shall be in complete management of running the restaurant/eating house. In consideration of that, it was agreed that the respondent-defendant shall pay certain amount to the appellants-plaintiffs.
5. Subsequently, another Memorandum of Understanding was executed between the appellants-plaintiffs and the respondent-defendant on 15-3-2007 continuing with the joint business, as was agreed on 5-3-2002, with variations in certain terms and conditions. One of those conditions was that for the period from 1-1-2009 to 30-6-2010, the respondent-defendant shall pay an amount of Rs.29,040/- to the appellants-plaintiffs.
The other two conditions contained in the said Memorandum of ::: Downloaded on - 09/06/2013 18:43:54 ::: 6 ao158.11.odt Understanding, which are material for the purposes of the controversy involved in this case, are reproduced below :
"7. That after 30th June 2010, the PARTY NO.1 will have an option to continue with the business or not. If the PARTY NO.1 wants to exercise the said option of not continuing with the business, it shall give a notice of minimum three months to PARTY NO.2 of its decision not to continue with the business. In that case, the eating house/restaurant will stop its business immediately at the expiry of the said period of three months from the date of the notice at the said place and the exclusive possession of the entire property will continue to remain with the PARTY NO.1.::: Downloaded on - 09/06/2013 18:43:54 ::: 7
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7. If the PARTY NO.2 does not abide by the above conditions and still by any means carries on the business at the said premises, it shall pay a consolidated amount of Rs.75,000/- (Rupees Seventy Five Thousand) only per month towards damages to the PARTY NO.1 for remaining in unauthorised possession and using the premises without the consent of the PARTY NO.1 till it vacates the said premises."
6. Since the appellants-plaintiffs intended to discontinue with the said business, they exercised their option by issuing a notice dated 1-12-2009 to the respondent-defendant. This notice was replied by the respondent-defendant on 15-3-2010, stating that the Hotel Al Zam Zam was a joint venture business and with the consent and knowledge of the appellants-plaintiffs, an amount ::: Downloaded on - 09/06/2013 18:43:54 ::: 8 ao158.11.odt of Rs.25 lacs approximately was spent on up-keeping and maintenance of the suit premises, and it is required to be adjusted.
The respondent-defendant called upon the appellants-plaintiffs to settle the account. The appellants-plaintiffs replied to the said communication on 30-4-2010, denying the claim of Rs.25 lacs, and called upon the respondent-defendant to vacate the suit premises. The appellants-plaintiffs also called upon the respondent-defendant to pay an amount of Rs.75,000/- per month towards damages for unauthorizedly occupying the suit premises, as per condition No.7 incorporated in the Memorandum of Understanding.
7. The appellants ultimately filed Special Civil Suit No.550 of 2011 against the respondent, claiming the following reliefs :
::: Downloaded on - 09/06/2013 18:43:54 ::: 9ao158.11.odt "i) Pass a decree for possession directing the defendant to hand over peaceful vacant possession of the suit property to the plaintiffs;
ii) Pass a decree directing the defendant to pay a sum of Rs.75,000/- per month towards unauthorized occupation charges of the suit property from 01/07/2010 till the date of delivery of possession of the same to the plaintiffs or in the alternative, order an enquiry into mesne profits from 01/07/2010 till the date of delivery of possession of the suit property as per Order 12 Rule 20 of the Code of Civil Procedure;
iii) Pass a decree for perpetual injunction restraining the defendant from continuing with the Hotel ::: Downloaded on - 09/06/2013 18:43:54 ::: 10 ao158.11.odt business from the suit property either by himself or through any of his agents or servants;
iv) Pass a decree for perpetual injunction restraining the defendant from making any construction activity over the suit property;
v) Saddle costs of the present suit against the defendant;
vi) Grant any other appropriate relief, which this Hon'ble Court deems fit and proper in the facts and circumstances of the case."
8. Along with the plaint, the appellants-plaintiffs filed an ::: Downloaded on - 09/06/2013 18:43:54 ::: 11 ao158.11.odt application Exhibit 5 for grant of temporary injunction. Prayer clause (i) in the application at Exhibit 5 is for grant of temporary injunction restraining the respondent-defendant from continuing with the hotel business from the suit premises pending the decision of the suit. By way of prayer clause (ii) of the said application, temporary injunction is claimed restraining the respondent-defendant from making any construction over the suit premises. By way of prayer clause (iii) of the said application, the appellants-plaintiffs claimed a direction to the respondent-defendant to deposit a sum of Rs.75,000/- per month in the Court from 1-5-2011 till the date of delivery of possession.
9. The claim in the suit is based upon the title of the appellants-plaintiffs over the suit premises and the termination of the Memoranda of Understandings dated 5-2-2002 and 15-3-2007 ::: Downloaded on - 09/06/2013 18:43:54 ::: 12 ao158.11.odt (MOUs) with effect from 30-6-2010. These are the facts, which are not disputed by the respondent-defendant, but the submission is made that the MOUs are not admissible in evidence, as those are not sufficiently stamped, and not the registered documents. It is also the plea raised by the respondent-defendant that the MOUs indicate that the appellants-plaintiffs and the respondent-
defendant are running the partnership business and there is no dissolution of partnership, and the partnership being unregistered, the suit is not maintainable by virtue of Section 69 of the Partnership Act. The respondent-defendant claimed to have spent an amount of Rs.25 lacs towards up-keeping and maintenance of the building, which he wanted to be paid to him by the appellants-
plaintiffs. The appellants-plaintiffs have denied such claim.
10. The Trial Court, by the impugned order ::: Downloaded on - 09/06/2013 18:43:54 ::: 13 ao158.11.odt dated 15-11-2011, has held that the question whether the business in question is a joint venture or a partnership, is required to be decided on merits, and if ultimately the appellants-plaintiffs succeed in proving that it was a joint venture, they can claim the damages for unauthorized occupation of the respondent-defendant. Hence, they are not entitled to temporary injunction, as prayed for. It is further held that if the respondent-
defendant is restrained from conducting the business from the suit premises, then it would amount to granting the final relief. So far as the claim for an amount of Rs.75,000/- per month till handing over the possession of the suit premises is concerned, the Trial Court has held that it is a penal clause and unless it is proved that the respondent-defendant is in unauthorized occupation of the suit premises, no such direction can be given. The Trial Court has further held that under the ::: Downloaded on - 09/06/2013 18:43:54 ::: 14 ao158.11.odt Memorandum of Understanding dated 15-3-2007 the appellants-
plaintiffs are entitled to an amount of Rs.29,040/- per month for the period from 1-1-2009 to 30-6-2010, and hence the respondent-defendant can be directed to deposit an amount of Rs.
29,040/- per month from 1-7-2010 till the decision of the suit.
Accordingly, the direction is given to deposit the arrears at the said rate from 1-7-2010 to 30-11-2011 within a period of two months from the date of the order.
11. Prima facie, the title of the appellants-plaintiffs over the suit premises is not disputed by the respondent-defendant. The execution of the MOUs has also not been disputed. In response to the notice dated 1-12-2009 issued by the appellants-plaintiffs informing the respondent-defendant their intention not to continue with the business with effect from 30-6-2010, the ::: Downloaded on - 09/06/2013 18:43:54 ::: 15 ao158.11.odt respondent-defendant has replied in para 2 of his letter dated 15-3-2010 that the business was a joint venture business.
In view of this, prima facie, the business is a joint venture business, has been admitted by the respondent-defendant, and the Trial Court has committed an error in ignoring this fact.
12. There is nothing in the MOUs to suggest that the respondent-defendant is to spend an amount for up-keeping and maintenance of the building, or even if such amount is spent, the appellants-plaintiffs are bound to reimburse the same to the respondent-defendant. There is nothing on record to substantiate such a claim of the respondent-defendant. Hence, the questions whether the respondent-defendant has spent an amount of Rs.25 lacs with the consent and knowledge of the appellants-plaintiffs, and whether the appellants-plaintiffs are liable to reimburse the ::: Downloaded on - 09/06/2013 18:43:54 ::: 16 ao158.11.odt said amount to the respondent-defendant, are required to be gone into on merits and can be determined only after the evidence is led.
13. The undisputed fact is that the respondent-defendant is in possession of the suit premises and running the business in the name and style of Hotel Al Zam Zam. The relief of temporary injunction restraining the respondent-defendant from continuing with the hotel business from the suit premises pending the decision of the suit, cannot be granted by way of interim injunction, because unless a decree for possession is passed, the respondent-defendant cannot be restrained from continuing with the business. The learned counsel for the respondent-defendant has made a categorical statement that during the pendency of the suit, the respondent-defendant does ::: Downloaded on - 09/06/2013 18:43:54 ::: 17 ao158.11.odt not intend to make any construction activity over the suit premises. This statement is accepted as an undertaking before this Court, and hence there is no need to grant temporary injunction to that effect claimed in the application at Exhibit 5.
14. The only question is of grant of interim relief of direction to the respondent-defendant to deposit a sum of Rs.75,000/- per month in the Trial Court from 1-5-2011 till the delivery of possession, as claimed in prayer clause (iii) of the application at Exhibit 5. The Trial Court has refused to grant this relief in its entirety, but has directed the respondent-defendant to continue to pay an amount of Rs.29,040/- per month to the appellants-plaintiffs pending the decision of the suit for two reasons, viz. (a) that the grant of such relief amounts to granting final relief in terms of prayer clause (ii) of the plaint, and ::: Downloaded on - 09/06/2013 18:43:54 ::: 18 ao158.11.odt
(b) that unless the respondent-defendant is held to be in unauthorized possession of the suit premises, the penal conditions No.7 of the Memorandum of Understanding dated 15-3-2007, which are reproduced earlier, will not operate.
15. Merely because the appellants-plaintiffs have claimed a specific relief of temporary injunction, which is also one of the reliefs claimed in the plaint, it would not automatically follow that grant of such relief would be in the nature of final relief. The Court has to go through the entire averments made in the plaint to find out what is/are the main relief/s claimed. The reliefs claimed in the plaint may include such relief, which is in the nature of an interim relief, which the Court would not be prevented from granting at an interim stage. If in a suit claiming specific performance of an agreement, the execution of such agreement is ::: Downloaded on - 09/06/2013 18:43:54 ::: 19 ao158.11.odt not disputed or it is admitted and it is found that the plaintiff is prima facie entitled to grant of main relief, then the Court can grant the interim relief of enforcing the other terms of contract, which are not in dispute, as an aid to the main relief claimed.
16. In the present case, the relief of restoration of possession of the suit premises is claimed by the appellants-plaintiffs on the basis of their title to the suit premises and the termination of the MOUs, which are the source of possession of the suit premises by the respondent-defendant. The execution of MOUs and the terms contained therein, are the facts, which are not in dispute.
Prima facie, it is found that the appellants-plaintiffs are entitled to restoration of possession. The grant of interim relief directing the respondent-defendant to deposit an amount of Rs.75,000/- per month in terms of the conditions No.7 of the Memorandum of ::: Downloaded on - 09/06/2013 18:43:54 ::: 20 ao158.11.odt Understanding dated 15-3-2007, reproduced earlier, would amount to granting an interim relief in aid of the final relief. It can neither be said that the grant of said relief would amount to granting the main relief claimed in the suit nor the Court is prevented from granting such relief. The Trial Court has, therefore, committed an error in rejecting such prayer for an interim relief on that count.
17. As stated earlier, the MOUs are the source of possession of the suit premises by the respondent-defendant. The conditions No.7 of the Memorandum of Understanding dated 15-3-2007, reproduced earlier, clearly indicate that the appellants-plaintiffs are at liberty to exercise their option not to continue with the business after 30-6-2010 and to bring such intention to the knowledge of the respondent-defendant by issuing a notice of ::: Downloaded on - 09/06/2013 18:43:54 ::: 21 ao158.11.odt minimum three months. On 1-12-2009, a notice has been issued by the appellants-plaintiffs to the respondent-defendant expressing their intention not to continue with the business after 30-6-2010. The contention that the MOUs in question are not admissible in evidence being insufficiently stamped and unregistered, cannot be accepted at this stage, because, prima facie, the MOUs reflect merely an understanding to jointly run the business and it is not the transfer of property. Hence, prima facie, it is an unauthorized continuation of the business of joint venture by the respondent-defendant.
18. In terms of the conditions No.7 of the Memorandum of Understanding dated 15-3-2007, the appellants-plaintiffs are entitled to restoration of possession of the entire property; failing which the respondent-defendant is liable to pay a consolidated ::: Downloaded on - 09/06/2013 18:43:54 ::: 22 ao158.11.odt amount of Rs.75,000/- per month towards the damages to the appellants-plaintiffs for remaining in unauthorized possession and using the premises without the consent of the appellants-plaintiffs till it is vacated, and hence the appellants-plaintiffs are entitled to get a consolidated amount of Rs.75,000/- per month, and there is no question of such conditions being penal in nature. The Trial Court has, therefore, committed an error in holding that the conditions No.7 will not operate till the suit is decided.
19. Once it is found that the respondent-defendant is prima facie unauthorizedly continuing with the business of joint venture and remaining in possession of the suit premises in breach of the terms of the MOUs, then, the appellants-plaintiffs are entitled to invoke the provisions of Order XXXIX, sub-rules (1) and (2) of Rule 2 of the Civil Procedure Code, ::: Downloaded on - 09/06/2013 18:43:54 ::: 23 ao158.11.odt which run as under :
"2. Injunction to restrain repetition or continuance of breach.--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on ::: Downloaded on - 09/06/2013 18:43:54 ::: 24 ao158.11.odt such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit."
In spite of the fact that the appellants-plaintiffs are the owners of the suit premises and they are entitled to be in possession of the same after 30-6-2010, the respondent-defendant is continuing with the possession of the property in breach of the terms of the MOUs, but he cannot be restrained in terms of sub-rule (1) of Rule 2 of Order 39 of the Civil Procedure Code, from continuing with the business till the ultimate decision of the suit.
20. In a situation where the Court finds that though a case is made out for grant of temporary injunction under sub-rule (1) of Rule 2 of Order 39 of the Civil Procedure Code, but such a relief ::: Downloaded on - 09/06/2013 18:43:54 ::: 25 ao158.11.odt cannot be granted for some reasons, the Court can invoke its inherent power under Section 151 of the Civil Procedure Code to impose certain conditions upon the respondent-defendant for permitting him to continue with the business and remain in possession of the suit premises pending the decision of the suit.
Sub-rule (2) of Rule 2 of Order 39 of the Code, though empowers the Court to impose conditions while granting an order of injunction, it will not come in the way of the Court to impose certain conditions for refusing to grant an order of injunction. It is not disputed in the present case that the respondent-defendant is liable to pay a consolidated amount of Rs.75,000/- per month, if he continues to remain in possession of the suit premises after 30-6-2010. The conditions precedent for claiming an amount of Rs.75,000/- per month are fulfilled and hence the respondent-defendant can be directed by way of an ::: Downloaded on - 09/06/2013 18:43:54 ::: 26 ao158.11.odt interim relief to deposit an amount at the rate of Rs.75,000/- per month in the Trial Court with effect from 1-7-2010 till the final decision of the suit so as to secure or protect the appellants-plaintiffs from continuing breach of the conditions No.7 of the Memorandum of Understanding dated 15-3-2007, reproduced earlier, with effect from 1-7-2010. It may also be as an aid to grant final relief in the plaint. The Trial Court has permitted the appellants-plaintiffs to withdraw an amount of Rs.
29,040/- per month from 1-7-2010 till the decision of the suit on the basis of the undisputed condition contained in the Memorandum of Understanding dated 15-3-2007, in respect of which no grievance has been made by the respondent-defendant.
Hence, the said order can be maintained.
21. In view of above, the appeal is partly allowed by setting ::: Downloaded on - 09/06/2013 18:43:54 ::: 27 ao158.11.odt aside the order dated 15-11-2011 passed by the Trial Court and granting the reliefs to the appellants-plaintiffs as under :
(i) The respondent-defendant is directed to deposit regularly the amount of Rs.75,000/- per month in the Trial Court from 1-7-2010 till the decision of the suit.
(ii) The amount of arrears at the rate of Rs.75,000/-
per month be deposited by the respondent-defendant from 1-7-2010 till this date within a period of six months from the date of this judgment.
(iii) If the respondent-defendant fails to comply with the conditions (i) and (ii) above, an order of temporary injunction restraining the respondent-defendant to continue with the ::: Downloaded on - 09/06/2013 18:43:54 ::: 28 ao158.11.odt business in the suit premises shall operate pending the decision of the suit.
(iv) The appellants-plaintiffs are at liberty to withdraw an amount of Rs.29,040/- deposited/to be deposited by the respondent-defendant with effect from 1-7-2010 till the decision of the suit.
(v) The statement made by the counsel for the respondent-defendant that no further activity of construction shall be carried out on the suit premises pending the decision of the suit, is accepted as an undertaking before this Court.
(vi) Rest of the reliefs claimed in the application Exhibit 5 are rejected.
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22. The appeal is allowed in above terms. No order as to costs.
JUDGE.
PDL.
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