- (1.) THIS is a suit for declaration and permanent injunction filed by the plaintiffs. The defendant has contested the suit by filing written statement. Issues were framed. Oral evidence was recorded on Commission. Two witnesses have been examined by the plaintiff and two witnesses on behalf of the defendants. Lengthy arguments were addressed by the respective Counsel of both the parties.
(2.) PLAINTIFFS case is as follows: Plaintiff is a Company which is running hotels at different places including the Hotel Oberoi Towers at Nariman Point, Bombay. On the mezzanine of the ground floor 15000 sq. ft. was given to the defendant on Leave and Licence basis as per licence Deed dated 27th December, 1974 for a period of 12 years under which the defendant had agreed to give loan of Rs. 30 lacs to the plaintiffs. The Licence Fee was fixed at Rs. 60,000/-, which has to be adjusted towards the said loan. Well before the expiry of the period of 12 years of the licence period, the plaintiff wrote the letter in April 1986 to the defendant to vacate the premises on the expiry of 12 years. Then the defendant wrote a letter dated 8th July, 1986 to the plaintiffs seeking renewal of the Deed for 12 more years. Plaintiff has rejected the request for renewal. The defendant was called upon again to vacate the premises on the date of the expiry of the licence period. The plaintiff went on pressing the defendant to vacate the premises. Subsequently, the defendant wrote a letter dated 22nd July, 1989 stating that the Bank will not vacate the suit premises. Then there was further exchange of letters and notices between the parties. Fire broke out in the plaintiffs Hotel including suit premises. Then defendant vacated the suit premises. Then subsequently, the defendant wrote a letter to the plaintiff to give back possession at the earliest but the plaintiffs contention is that since the licence period has expired, the defendant has no right to ask for possession of the suit premises. Then defendant filed a suit in this Court in Suit No. 2735 of 1990 for possession of the suit premises under section 6 of the Specific Reliefs Act. A concession was made on behalf of the plaintiff in that suit that the plaintiff in that suit had been dispossessed as alleged in the plaint of that suit and this concession was made with prejudice only for the purpose of that suit. Then, after hearing both the parties, this Court decreed that suit by Judgment dated 6-11-1990. Inspite of that decree, the plaintiff is in continuous active possession of the suit premises. It is alleged that defendant has no right to use or occupy the suit premises. After expiry of the licence period the defendants occupation in the suit premises was of a trespassers and this position was neither agreed nor acquiesced by the plaintiffs at any time. Hence the suit is filed for declaration that the defendants have no right whatever to occupy the suit premises and that plaintiff is exclusively entitled to the same; for a declaration that the decree dated 6-11-1990 in Suit No. 2735 of 1990 is inoperative and incapable of execution except regarding the moveable properties; for an order of permanent injunction to restrain the defendant from executing the said decree dated 6-11-1990 except regarding movables.
(3.) THE defence is as follows: It is admitted that in 1974 the plaintiffs approached the defendant bank for a loan and accordingly, the defendant gave loan of Rs. 30 lacs at that time, on the request of defendants, the plaintiffs gave the suit premises to the defendant on licence for a period of 12 years subject to payment of licence fee or compensation of Rs. 60,000/- per month. The loan amount has been adjusted out of the licence fee and it is fully repaid. Then there is a reference in the written statement to several clauses of the licence Deed including a clause for renewal. It is stated that the defendant exercised its option for renewal of the period for a period 12 years. The plaintiff expressed unwillingness to renew the leave and licence agreement. The plaintiff has not been encashing the cheques sent by the defendant towards licence fees. It is stated that after the fire broke out on 12th April, 1990, the defendant wanted to keep the damaged furniture, articles etc. , in the same position for the purpose of examination by the Insurance Surveyor but the plaintiffs took the law in its own hand and forcibly removed the defendants furniture articles etc. , from the suit premises. It is alleged that the plaintiffs unlawfully and forcibly dispossessed the defendant from the suit premises. Exchange of letters between the parties is admitted regarding plaintiffs demand asking the defendant to vacate. Then it is stated without prejudice to those averments, the defendant has a valid and good title to the suit premises. It is stated that on a true construction of the agreement dated 27th December, 1994, it is clear that the intention of the parties was to create a lease regarding the suit premises. Hence it is stated that the transaction is one of lease as could be seen from the terms of the Deed. Then it is further stated alternatively that the defendant had a right to renew the agreement and has exercised their right of option and therefore, the agreement should continue for a further period of 12 years. The suit is not maintainable. The plaintiff cannot seek injunction to restrain the defendant from executing the decree. The relief asked in the plaint relates to the possession of the suit premises and the plaintiffs claim is one of seeking the relief against a licensee on the ground of expiry of the period of licence. Such a suit is triable exclusively by a Small Cause Court under section 41 of the Presidency Small Causes Courts Act. Hence this Court has no jurisdiction to try the present suit. It is further stated that the actual relationship between the parties is that of a landlord and tenant. Even such a suit between the landlord or tenant can be tried only by the competent Court under the Bombay Rent Act. Even on this ground this Court had no jurisdiction to try the present suit. The plaintiffs cannot maintain a suit of this type unless the plaintiff restores the possession obtained prior to previous suit viz. , Suit No. 2735 of 1995 under section 6 of the Specific Relief Act. The plaintiff cannot ask for relief of injunction when they have taken wrongful possession of the suit premises. The person who has taken law into his own hand cannot ask such a relief of injunction. If a suit of this type is decreed then the provisions of section 6 of the Specific Reliefs Act become negative. The defendant has suffered due to the conduct of the plaintiffs for which the defendant has already filed a suit for damages against the plaintiffs in Suit No. 1883 of 1993 in this Court. The defendant was in exclusive possession of the suit premises as a tenant and the defendant is protected by the provisions of the Bombay Rent Act. The defendant is entitled to remain in possession of the suit premises till the defendants tenancy is validly terminated in a Court of Law. Hence the plaintiff has no right to immediate possession of the suit premises. It is also alleged that defendant has become a tenant of the suit premises by adverse possession. It is denied that the agreement of Leave and Licence and the advance of loan of Rs. 30,00,000/- was a composite transaction. The defendant has every right to execute the decree passed in Suit No. 2735 of 1990. Hence it is prayed that the suit be dismissed with costs. ;