Allowed

T.T. Baiju v. Corporation of Kochi

Kerala HC14 Oct 2020RFA/538/2013

Case brief

AI extract

What is this about?

The High Court allowed appeals against the dismissal of suits filed by a shop licensee against the Corporation of Kochi. The court held that statutory bars cited by the trial court did not apply. It found that material evidence regarding arrears and licence status was missing. The appeal was allowed, and the matter was remanded for a fresh decision on evidence.

What did the court decide?

Both appeals allowed; impugned judgment dismissed; matter remanded to court below for fresh decision on material issues within three months.

T.T. Baiju Vs Corporation of Kochi — Landlord and Tenant | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942

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RFA.No.203 OF 2010

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AGAINST THE JUDGMENT AND DECREE DATED 18-09-2009 IN O.S. NO.71/2007 OF I ADDITIONAL SUB COURT,ERNAKULAM

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APPELLANT/PLAINTIFF:

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T.T.BAIJU, S/O. T.V. THAMPI, PROPRIETOR, 'BAIJU FANCY',CORPORATION NO.40/2346, ROOM NO.21, IST FLOOR, CORPORATION SHOPPING COMPLEX, NEAR SRIDHAR THEATRE, BROADWAY, ERNAKULAM,KOCHI-682 031.

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BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.M.F.MOHAMMOD SIYAD SRI.THOMAS T.VARGHESE

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RESPONDENT/DEFENDANT:

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CORPORATION OF KOCHI, CORPORATION BUILDING, ERNAKULAM, KOCHI-682 011,REPRESENTED BY ITS SECRETARY.

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BY ADV. SRI.K.P.JUSTINE (KARIPAT)SC COCHIN CORPN

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2020, ALONG WITH RFA.NO.538/2013, THE COURT ON 14-102020 DELIVERED THE FOLLOWING:

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R.F.A.Nos.203/2010 and 538/2013

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942

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RFA.No.538 OF 2013

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AGAINST THE JUDGMENT AND DECREE DATED 18-09-2009 IN O.S.NO. 640/2006 OF I ADDITIONAL SUB COURT,ERNAKULAM

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APPELLANT/PLAINTIFF:

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T.T. BAIJU,

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AGED 36 YEARS,S/O.T.V.THAMPI, PROPRIETOR, 'BAIJU FANCY', CORPORATION NO.40/2346, ROOM NO,21, 1ST FLOOR, CORPORATION SHOPPING COMPLEX, NEAR SRIDHAR THEATRE, BRODWAY, ERNAKULAM, KOCHI682031.

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BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.N.ASWATHY SMT.K.R.MONISHA SRI.THOMAS T.VARGHESE

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RESPONDENT/DEFENDANT:

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CORPORATION OF KOCHI,

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CORPORATION BUILDING, ERNAKULAM, KOCHI- 682011 REPRESENTED BY ITS SECRETARY

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BY ADV. SRI.K.P.JUSTINE (KARIPAT)SC COCHIN CORPN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2020, ALONG WITH R.F.A.NO.203/2010, THE COURT ON 14-10-2020 DELIVERED THE FOLLOWING:

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R.F.A.Nos.203/2010 and 538/2013

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Dated this the 14^th day of October, 2020

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C O M M O N J U D G M E N T

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Both suits in O.S.Nos.71/2007 and 640/2006

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filed by the plaintiff were dismissed by common judgment dated 18.9.2009. Being aggrieved by the

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common judgment and decree of the Sub Judge, Ernakulam, the plaintiff preferred these appeals.

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The appellant is the proprietor of plaint schedule shop room owned by the respondent Corporation of Cochin and is conducting a business in fancy under the name and style “Baiju Fancy”. He

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claims to have obtained a licence from the respondent on 14.7.2006 following preliminary deposits made under Exts.A1 to A4 receipts. The

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licence arrangement was for a period of one year with liability for payment of monthly rent of Rs.5,294/- since the date of licence.

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The contention of the appellant before the

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R.F.A.Nos.203/2010 and 538/2013

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court below was that on 30.8.2006, the respondent sent a notice to him demanding clearance of arrears of past licence fee charging him with liability for a sum of Rs.3,63,938/- incurred by a partnership firm which was in occupation of the shop room before his induction as the licencee. He resisted the demand explaining that he did not have any connection with the firm nor he undertaken the liability of the partners. He conceded his liability for payment of licence fees since 14.7.2006. It is stated that on 18.6.2006 the officers of the defendant came to the plaint property and threatened him with forceful eviction. Therefore, he filed O.S.No.640/2006 for injunction against forceful eviction.

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After sending suit notice in compliance

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with Section 544 of the Kerala Municipality Act, he filed O.S.No.71/2007 for a declaration that he was

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R.F.A.Nos.203/2010 and 538/2013

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not liable for payment of past licence fees claimed

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for the period from 1.4.1997 to 31.8.2006.

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The respondent filed written statement in both suits. The suit for declaration was resisted inter alia contending that it was barred by Sections 509, 544 and 463 of the Act. It was also contended that since no leave was obtained under Order II Rule 2 of the CPC in O.S.No.640/2006, the subsequent suit cannot be maintained under law.

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According to the respondent, there was already a partnership firm doing business in plaint property in the names of one Hussain and Ali and also the appellant. On 23.8.2005, the other two partners retired from the firm leaving the appellant to continue in the shop. The appellant started a new business agreeing with the respondent that he will clear all the arrears incurred by the erstwhile firm and accordingly he was permitted to

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R.F.A.Nos.203/2010 and 538/2013

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make remittance of amounts received under Exts.A1

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to A4. The respondent, however, denied having executed any licence deed as claimed by the

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appellant. It is further stated that Finance Committee in its decision taken on 11.8.2006

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enhanced the rent for the previous years payable by the firm in accordance with law and as per the terms agreed upon by the appellant and the retiring partners on 23.8.2005 under the dissolution deed, he was called upon by the impugned notices to clear the arrears.

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The court below after framing issues and discussing evidence, held O.S.No.71/2007 to be barred by Section 506 as well as Section 563 of the Act and dismissed it as not maintainable. On

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merits, it was held that the appellant failed to produce the licence deed alleged to have been issued by the respondent inspite of denial of

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R.F.A.Nos.203/2010 and 538/2013

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execution and for that reason, suit was dismissed

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holding that no licensor and licencee relationship existed between the parties.

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appellant and respondent in both the matters.

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It is contended by the learned counsel for

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the appellant that O.S.No.71/2007 should not have been dismissed as barred by Sections 509 and 563 of the Act and the decision was erroneous. I find that the bar under Section 563 of the Act applies only to suits filed in relation to matters covered by Chapters XVII, XVIII and XIX of the Act. It is indisputably clear that the subject matter of the suit does not relate to any of the matters dealt with in the above Chapters. Evidently, therefore

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bar under Section 563 of the Act does not apply. So

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far as Section 509 of the Act is concerned, it provides optional remedy to persons aggrieved by

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R.F.A.Nos.203/2010 and 538/2013

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the action and decisions of the Secretary to file an appeal before the Forums constituted under the Act. Section 509 does not exclude the jurisdiction of any civil courts. Therefore, ouster of jurisdiction of civil court cannot under no circumstance be inferred even impliedly. For these reasons, I hold that the dismissal of O.S.No.71/2007 on the ground of statutory bar is

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wholly untenable and consequently the finding is liable to be set aside.

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Equally wrong is the finding that the

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appellant is not the licencee of the schedule shop room. It is true that he could not produce the alleged licence deed dated 14.7.2006. The

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respondent has a specific contention that no such deed was executed between parties. But fact remains

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that on 14.7.2006, the appellant deposited an amount of Rs.50,000/- and an additional amount of

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R.F.A.Nos.203/2010 and 538/2013

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Rs.45,316/- as proved by Exts.A1 and A2. In acceptance of some more additional amounts, the respondent issued Exts.A3 and A4 receipts. Exts.A5 and A8 notices issued by the respondent are also relevant and they sufficiently indicate that but for his continuance as licence these notices would not have been issued. The conduct of the respondent establishes that the appellant was put in possession of the room as licencee.

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The main issue is as to the liability of

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the appellant for clearing the alleged arrears of licence fee since 1.4.1997 till 31.8.2006. This

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depends on proof of the contention of the respondent that appellant had undertaken the liability for clearing the arrears of fees due from the partners who retired and executed a dissolution deed with the appellant on 23.8.2005. Equally relevant in this respect is the contention of the

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R.F.A.Nos.203/2010 and 538/2013

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respondent that a decision was taken by the Finance Committee on 11.8.2006 enhancing the rent for the previous periods and fixing the liability on the appellant based on the alleged agreement dated 23.8.2005 between the partners. None of these documents was produced before the trial court.

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The learned counsel for the respondent submitted that had these and other material documents been produced before the trial court, the decision on the issues in the suit would have been well reasoned. During the course of argument, he handed over the concerned file kept in the custody of the respondent for the perusal of the court and referred to the agreement dated 23.8.2005 as well as the decision of the Finance Committee.

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The learned counsel for the appellant contended that even if it were assumed that the respondent was entitled to recover the arrears of

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R.F.A.Nos.203/2010 and 538/2013

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licence fees, it was barred by limitation since no destraint warrant was issued for recovering the amounts within three years from the date when it was due as provided by Section 539 of the Act. In this respect, decision reported in Mercy Hotels (M/s.) and others v. Kerala State Water Authority and others (2019(4) KHC 127) was canvassed. I do not propose to examine the contentions raised by parties on merits because I am satisfied that material evidence was not brought on record by the respondent enabling the trial court to take a well considered decision in the matter. In my view, the matter has to go back to court below for fresh decision on the material issues arising in both the suits.

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It was submitted by the learned counsel for the appellant that he continues to be the licencee of the shop room and is prepared to pay whatever

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R.F.A.Nos.203/2010 and 538/2013

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arrears are due from 14.6.2006 after he was inducted as licencee. In my view whether he still continues to be a licencee itself is a question to be decided on facts and evidence. The court below will examine the question whether continuance in the shop room even after the expiry of licence period will entitle the appellant to a decree of injunction. In my perception of law, a licencee cannot lawfully continue occupancy of premises unless the existing arrangement is recovered by the

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licensor. So also significant is the question whether the appellant was a partner of any erstwhile firm and he had at any point of time undertaken the liability of the prior licencee by any document executed by him. These are matters which require to be decided on the basis of evidence.

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R.F.A.Nos.203/2010 and 538/2013

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In the result, both appeals are allowed setting aside the impugned common judgment and decree of the first Additional Sub Court, Ernakulam, remanding the matter for fresh decision on the material issues involved between parties. The court below shall extend opportunities to parties on either side and take appropriate decision in accordance with law untrammelled by any of the observations made in this judgment. It is directed that the suits shall be disposed within a period of three months from the date of receipt of certified copy of this judgment. The parties shall appear before the court below on receipt of notice for appearance.

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All pending interlocutory applications are

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closed.

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Sd/- T.V.ANILKUMAR JUDGE

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ami/

T.T. Baiju v. Corporation of Kochi

Case brief

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T.T. Baiju v. Corporation of Kochi

Case brief

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