Allowed

Ramona Pinto Nee D Souza v. Harjinder Kaur @ Soni Singh and Anr.

Bombay HC4 Feb 2014S/3123/2010

Case brief

AI extract

What is this about?

The Court granted an ex parte decree in a suit for possession and declaration. The defendant was absent, and interim orders for injunction and appointment of a receiver had already been passed. The suit for mesne profits was not pressed today.

What did the court decide?

Decree for declaration and possession of the suit property granted ex parte; Court Receiver discharged on payment of costs.

1.MS. HARJINDER KAUR @ SONI SINGH, of Bombay, Indian Inhabitant, residing at D-2, New Raising Coop. Housing Society Limited, Juhu Tara Road, Santacruz – West, Mumbai - 400 049, also having office at “Steak House”, Shop No.5, Lourdes Heaven, Pali Naka, Bandra – West, Mumbai – 400 050.

2.JOAN VALLES née D’SOUZA, of Bombay, Indian Inhabitant, residing at 6, Sebastian Sadan, Carmel Coop. Housing Society Ltd., St. John the Baptist Road, Bandra – West, Mumbai – 400 050…Defendants

1.Heard Mr. Kapadia, learned advocate for the plaintiff. Defendants and their advocates are absent, though served. The suit is listed today for exparte decree. The plaintiffs have filed a compilation of documents. It is taken on record and marked Exhibit “P1” (collectively). The original documents are returned to the plaintiffs.

2.The 2nd defendant to the suit is the plaintiff’s sister. She is a formal party to the suit. No reliefs are sought against her. The plaintiff owns shop No.1 and basement level premises situated on plot No.565, Holy Family Presmises CHS Limited, Dr. Ambedkar Road, Pali Hill, Bandra (West), Mumbai. These premises ad- measure about 900 square feet, and were purchased by the plaintiff on 24th September 1978. The 2nd defendant’s name was added, according to the plaintiff, for convenience.

3.Being the owner of the suit property, the plaintiff exclusively used and occupied it. She paid all charges and outgoings of that property. Before November 2008, it was a fully furnished and functioning beauty parlor. Being unable to continue with its business, the plaintiffs was being inclined to give out the premises on a leave and license. In November 2008, the 1st defendant visited the premises. She met the plaintiff, who said she was interested in giving out the premises on a leave and license. The broad terms and conditions of the license were discussed. The 1st defendant asked for the keys to the property, so that she could inspect it with a view to take a decision on its refurbishing. The 1st defendant offered the plaintiff an amount of Rs.5,00,000/- as an advance, to be subsequently adjusted as a security deposit against the proposed

leave and license agreement. The plaintiff, in good faith, accepted this amount from the 1st defendant. The plaintiff suggested the terms and conditions of the leave and license. Drafts of the proposed agreement were exchanged, but the agreement never materialized. E-mails between the parties from 11th to 22nd November 2008 show these negotiations and discussions.

4.The plaintiff claims that the 1st defendant fraudulently took the keys of the suit property for the limited purpose of inspection. The plaintiff handed over the keys of premises to the 1st defendant without any intention whatever of creating any right in favour of the 1st defendant in respect of the suit property. While the renovations were being carried out, 1st defendant continued to delay the execution of the leave and license agreement. On 1st February 2009, the 1st defendant sent an incomplete draft of the proposed leave and license agreement to the plaintiff. Drafts were continued to be exchanged till as late as 13th February 2009, but with no result. The plaintiff finally reminded the 1st defendant, by the plaintiff’s e-mail dated 14th February 2009 and letter dated 8th April 2009, that a date be fixed for execution of the leave and license agreement and that payment be made to the plaintiff with effect from 15th February 2009.

5.On 1st May 2009, the 1st defendant sent to the plaintiff eleven post-dated cheques each in the amount of Rs.85,000/-. These were supposedly for payment of a license fee for the first eleven months of the license period. Once again relying on the representations made by the 1st defendant, the plaintiff wrote to the cooperative housing society to inform that she intended to give the premises on leave and license basis. Since that leave and license

agreement was never actually executed, the plaintiff did not encash any of these cheques. The 1st defendant also forwarded to the plaintiff a cheque of Rs.4,50,000/- to cover the arrears of rent towards furniture and fixtures. The 1st defendant promised to personally arrange to withdraw the money from HDFC Bank, Bandra and give the proceeds to the plaintiff. The 1st defendant did not do so.

6.The delay in execution of the leave and license agreement continued, the plaintiff says, for no fault of her own. She attempted to meet the 1st defendant several times. The 1st defendant repeatedly assured the plaintiff that the agreement would be executed. Some time around 6th August 2009, the plaintiff found that the 1st defendant had changed locks of the suit property without prior intimation to the plaintiff. The plaintiff protested, and by her several letters from 4th May 2009 to 28th January 2010, repeatedly asked the 1st defendant to execute a leave and license agreement. The plaintiff also realized that the 1st defendant had put up a notice on the door of the suit property stating that it was under litigation, although it was not. By her advocates’ letters dated 26th November 2009 and 28th January 2010, the plaintiff demanded possession from the 1st defendant and mesne profits, and, in default gave notice that she would initiate legal proceedings.

7.The plaintiff’s case is that despite every attempt to contact the defendant, including through a broker, the 1st defendant continued to unlawfully and illegally occupy the suit property. The plaintiff states that the 1st defendant is a trespasser in the suit property and in every part thereof.

8.The plaintiff, therefore, filed present suit, inter alia, seeking a declaration, a decree of possession and a sum of Rs.38,00,000/- towards mesne profits. The suit was valued at over Rs.1 crore being the value of the property and the loss sought to be suffered. This is how the suit remains on the docket of this Court. Today, Mr. Kapadia, learned advocate for the plaintiff states that he is only pressing prayer (a) and (b), which are, respectively, for a declaration and a decree of possession.

9.After the suit was filed, the plaintiff also filed Notice of Motion No.3508 of 2010 seeking interim and ad-interim reliefs. Orders were passed on that Notice of Motion on 16th December 2010, 11th January 2011 and 1st February 2011. The 1st defendant was given notice of both the suit and of the notice of motion. She did not appear, or cause appearance to be entered on her behalf. She filed no affidavit in reply to the Notice of Motion. By a detailed order dated 11th January 2011, an injunction was granted in favour of the plaintiff. By the subsequent order of 1st February 2011, after noting that despite notice the 1st defendant continued to remain absent, the Court Receiver was appointed in respect of the suit property. He was directed to take possession and to submit a report. The injunction was continued. This Court ordered that the Court Receiver would fix an appointment for taking possession in respect of the suit property after giving notice to the 1st defendant on her office address as well as her residential address. If she failed to come forward and cooperate with the Court Receiver, he would be entitled to break open the property, prepare an inventory of articles, furnitures etc. lying in the said premises and thereafter seal the said premises and put his board on the said premises. This was done.

10.Mr. Kapadia states that since then the Court Receiver has placed the plaintiff in possession of the suit property, pursuant to the subsequent order dated 7th April 2011. In para 4 of that order, the Court Receiver was directed to hand over possession to the plaintiff who was to be appointed as an agent of the Court Receiver without security or royalty, but provided the plaintiff continued to bear the outgoings in respect of the suit property. The plaintiff has done so. The plaintiff was also given liberty to complete the repairs/ renovation works in the suit property.

11.Having heard Mr. Kapadia, and, with his assistance, having considered the material on record including the various interim orders, I am satisfied that this is an appropriate case for grant of an exparte decree. The 1st defendant has not appeared, although she has been served. She has also not appeared at the interim stage or at any time. No relief is sought against 2nd defendant, who is the sister of the plaintiff and is joined only as a formal party.

12.In the result, there will be a decree in favour of the plaintiff in terms of prayer clause (a) and (b). The Court Receiver shall stand discharged without passing accounts but on payment of his costs, charges and expenses. These shall be paid within a period of three weeks from the date that he intimates the plaintiff of the amount payable to him.

Ramona Pinto Nee D Souza v. Harjinder Kaur @ Soni Singh and Anr.

Case brief

What is this about?

What did the court decide?

Ramona Pinto Nee D Souza v. Harjinder Kaur @ Soni Singh and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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