Allowed

Jawanaji K. Rebari v. Mohammed K. Ghore and 2 Ors.

Bombay HC1 Nov 2012APP/686/2012

Case brief

AI extract

What is this about?

This High Court of Bombay allowed an appeal against the rejection of an interim injunction. The court found that the appellant was in possession of the suit shop based on the appellant's conduct and unpaid security deposit under prior conducting agreements.

What did the court decide?

Appeal allowed; court receiver directed to take possession of the suit shop and hand over to the appellant.

Jawanaji K. Rebari Vs Mohammed K. Ghore and… — Contract and Commercial Disputes | Bombay HC (2012)

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Appl(L)-656-12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL LODGING NO. 656 OF 2012 IN NOTICE OF MOTION NO.1525 OF 2012 IN SUIT NO.1409 OF 2012

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... Jawanaji Kalaji Rebari. ... Appellant Vs. Mohammed Khalilullah Ghore & Ors. … Respondents ...

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Ms Jyotsna Vyas i/b Mr.O.P.Pandya for appellant. Mr.V.T.Dubey for respondents.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 1 November 2012

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P.C.

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This appeal is directed against the order dated 19 December 2011 of the learned trial Judge of this Court declining to grant any interim injunction in the appellant's notice of motion in his suit filed under Section 6 of the Specific Relief Act, 1963.

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In our order dated 20 October 2012, we had given reasons for appointing the court receiver. As indicated in the court receiver's report dated 31 October 2012, the court receiver has already taken symbolic possession of the suit premises on 30 October 2012. The report clearly indicates that respondents themselves were not present when the court receiver went to the suit shop, but one Abdul Wahid was present at the shop and had accepted an intimation on 29 October 2012

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stating that he would inform the respondents. It was in view of the said prior intimation given to Abdul Wahid on 29 October 2012 that one Zahir Aalam claiming to be son of respondent No.1-Mohammed Khalilullah Ghore was present at the shop on 30 October 2012.

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We have heard learned counsel for the appellant as well as learned counsel for respondents at length. Notice for final disposal was issued and by consent of learned counsel for parties, the appeal has been taken up for final disposal.

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The learned counsel for respondents has submitted that the appellant was never in possession of the suit shop as he was merely asked to conduct a business of running a tea stall, as per the conducting agreements dated 5 May 1995 and 12 April 1996, which clearly mentions that respondents (owner) shall remain and continue to be in possession, charge and control of the business premises, whereas the conductor (appellant) shall use the said business premises only as incidental to conduct the said business of running tea & cold drink shop.

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On the other hand, learned counsel for the appellant has invited out attention to the affidavit dated 12 January 2011 signed by three respondents herein (original defendants), who have in terms stated that the appellant is running a tea business in the suit shop since 1991 till the date of filing the affidavit. It was specifically stated in the affidavit that the affidavit was made to produce the same before the concerned authorities for doing their needful. The learned counsel for the appellant states that the affidavit was required to be produced before the Municipal Corporation as the appellant has to receive various notices from the Municipal Corporation.

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The learned counsel for the appellant also invited our attention to the copy of the writing in Hindi dated 27 February 2005 with the English translation thereof, at Exh.D-1. As per the said writing the respondents (original defendants) agreed to sell the suit shop to the appellant for a consideration of Rs.10,00,000/-, out of which the respondents received Rs.6,70,000/- and the respondents agreed to transfer the suit shop to the appellant after receiving the balance amount. There is no dispute about the fact that the suit shop belongs to Doongursee Shamji Joshi Trust and therefore it is the case of the appellant that the respondents had agreed to transfer their tenancy rights to the appellant for a consideration of Rs.10,00,000/-, out of which Rs.6,70,000/- was paid by the appellant to respondents by 27 February 2005.

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In our order dated 20 October 2012, we have also referred to the other documents relied upon by the appellant indicating the appellant's possession of the suit shop including the cash memo dated 27 September 2008 issued by Navjivan Gas Supply Co. as well as the subscription voucher dated 27 September 2008 issued by Bharat Petroleum Corporation Ltd., both showing the name of the appellant with address of the suit premises. The appellant has also relied upon other documents from the record of the Municipal Corporation, B.E.S.T. Etc., wherein the name of the consumer/establishment is mentioned as Novelty Tea House, which is being run by the appellant, as indicated in the affidavit filed by respondents filed recently in January 2011.

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Merely because respondents are relying upon the conducting agreements dated 5 May 1995 and 12 March 1996, which also clearly indicate that the appellant was allowed to run a tea business in the suit shop, it cannot be said that the appellant was not in possession of the suit shop. Moreover, the conducting agreements of 1995 and 1996 clearly state that respondents had received from the appellant a sum of Rs.31,000/- being the amount of security deposit, to be refunded to the appellant on expiry of the agreements. If the appellant had handed over possession of the suit shop to the respondents, on termination of the conducting agreement or at any time between April 1997 when the agreement would have come to an end by efflux of time till the date of filing the suit, the appellant could not have voluntarily handed over possession of the suit shop to respondents without getting refund of Rs.31,000/-. Admittedly, respondents have not produced any receipt issued by the appellant acknowledging receipt of Rs.31,000/- and that is not even the case of respondents that they had refunded Rs.31,000/- to the appellant. In this set of circumstances, we have no doubt in accepting the appellant's case that the appellant was in possession of the suit shop within six months prior to the date of filing the suit and that prima facie the respondents had executed the writing in favour of the appellant for transferring the suit shop to the appellant for a consideration of Rs.10,00,000/-, out of which Rs.6,70,000/- was prima facie received by respondents from the appellant in the year 2005.

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In view of the above discussion, we allow this appeal and direct the court receiver to take physical possession of the suit shop from whoever is found in possession of the suit shop and to hand over the same to the appellant, subject to condition that the appellant shall

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pay royalty at the rate of Rs.4000/- per month to the court receiver, apart from paying all the municipal taxes, electricity bill and other charges in respect of the suit shop,without security. The court receiver shall carry out this direction by 6 November 2012, and if necessary by taking assistance of police authority.

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Parties to act on an ordinary copy of this order duly authenticated by the Court Associate as a true copy.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Jawanaji K. Rebari v. Mohammed K. Ghore and 2 Ors.

Case brief

What is this about?

What did the court decide?

Jawanaji K. Rebari v. Mohammed K. Ghore and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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