RAJENDRA B NAIR Vs. SURESH D DYANMOTHE

JUDGEMENT

(1.) THE applicant is the owner of certain premises bearing flat No. 10, situated at Perystar Co-operative Society, Eksar Road, Borivali (West), Mumbai-400 092. An agreement of leave and licence was entered into between the applicant and the respondent on 10th July, 1991. The leave and licence agreement was for a term of 11 months commencing from 10th July, 1991 and was to expire on 10th June, 1992. Under the terms of the licence, it was provided that the licensee shall pay a sum of Rs. 11,000/- to the licensor as and by way of security deposit. The monthly licence fee, it was agreed, would be Rs. 1,000/- which would be adjusted from the security deposit. Clause 10 of the deed of licence provided that the possession of the licensee shall be non-exclusive and only temporary in nature and Clause 14 stipulated that the licence would not create any tenancy or such other right in the licensee over the premises.

(2.) SUBSEQUENTLY, a second agreement of leave and licence was entered into between the parties on 9th September, 1992. Clause 1 of the deed of leave and licence expressly stated that the licensor has granted a licence to the licensee to use and occupy the premises only for a temporary period of three months commencing from 9th September, 1992 and expiring automatically on 8th December, 1992. Clause 2 provided that the licensee shall pay a sum of Rs. 3,500/- to the licensor as and by way of monthly rent. Clause 8 provided that the licensor shall have free access to the said premises at all reasonable times for inspection and by Clause 10, it was agreed that possession of the licensee shall be non-exclusive and shall be temporary in nature and the licence was liable to be revoked by the licensor by one months notice in writing under Clause 11. Clause 12 provided that the licensee agrees that he shall not in any manner claim any right in any capacity whatsoever beyond the terms of licence, nor shall he let or sublet the said premises to any other person. Finally, Clause 14 provided that the licence shall not create any tenancy or such other right of occupation to the licensee over the premises.

(3.) SINCE the respondent failed to vacate the premises upon the expiry of the term of licence on 8th December, 1992, a notice was addressed by the applicant to the respondent on 1st February, 1993 stating that three cheques which had been issued by the respondent towards the payment of monthly compensation had been dishonoured and calling upon the respondent to hand over peaceful and vacant possession. In reply, by a letter dated 18-2-1993, the respondent set up the case that what was granted to the respondent was a letting out of the flat though, "as usual" a leave and licence agreement was obtained. The respondent then set up the case that in June 1992, an oral agreement to sell the flat to the wife of the respondent was entered into by the applicant at and for a consideration of Rs. 4. 3 lakhs out of which an amount of Rs. 1 lakhs was paid in cash.