CHETAN BHANUPRASAD DESAI Vs. RASIKALAL R ZAVERI

JUDGEMENT

(1.) This notice of motion is taken out by the Plaintiff. The Plaintiff has filed this suit under Section 6 of the Specific Relief Act for a decree of possession. The suit relates to the property namely room No.2, Devkaram Mansion, 3rd Floor, Mangaldas Road, Mumbai - 400 002. According to the Plaintiff, by an agreement of leave and licence dated 6th August, 1999 the Plaintiff was given licence of the premises by the Defendant. Licence was for a period of 11 months. Licence fee was fixed at the rate of Rs.2000/- per month. A security deposit of Rs.8 lakh was given by the Plaintiff to the Defendant, which was to be refunded at the end of the licence period. The agreement further provides that on expiry of the licence period the Plaintiff will vacate the room on payment of amount of security deposit by the Defendant. This agreement is signed on behalf of the Plaintiff (sic - Defendant) by his son Nikhil, who described himself as a constituted attorney of the Defendant. According to the Plaintiff, pursuant to this agreement he was placed in possession of the room. He took telephone connection and he was using the room for residence as also for business purpose. The period of licence came to an end on 5-7-2000, but the Defendant did not refund the amount of security deposit i.e. Rs.8 lakh, therefore the Plaintiff continued in possession.

(2.) Notice of motion is opposed by the Defendant, who has filed affidavit in reply. According to the Defendant, signature of his son was obtained on the agreement by force. According to the Defendant, the son of the Defendant was kidnapped by the Plaintiff and his signature on the agreement was obtained. According to the Plaintiff, complaints have also been made to the police authority in relation to alleged kidnapping. According to the Defendant, documents on which the Plaintiff relies are all false and fabricated documents and those documents according to the Defendant have been prepared by the Plaintiff only for the purpose of showing that he was in possession of the room when, in fact, he was never in possession of the room. The Defendant also sought permission to produce before me copy of the police complaint, which according to the Defendant, was made by his son. Though copy of that complaint is not annexed to the reply. The learned Counsel appearing for the Defendant wanted to rely on that document, because he has stated in his reply that he will rely on the documents. The production of that document before the Court was opposed by the Learned Counsel appearing for the Plaintiff on the ground that though inspection of those documents was sought by the Plaintiff, it has not been given. Inspection was not given by the Defendant on the pretext that the Defendant is out of Bombay and is likely to return to Bombay only in the first week of December, 2003.

(3.) It is clear that the Plaintiff is relying, mainly, on the agreement dated 6th August, 1999 to establish his case that he was in possession of the room. Recitals of that document clearly establish that licence of the premises was created in favour of the Plaintiff and possession was given to him. This document is signed admittedly by the son of Defendant by name Nikhil. The signature of Nikhil is not denied, what is stated is that signature of Nikhil was obtained on this document by force. Neither any affidavit by Nikhil has been filed nor a copy of any complaint made by Nikhil to any authority is produced on record. It is further pertinent to note here that in the agreement Nikhil described himself as constituted attorney of the Defendant. The fact that Nikhil was constituted attorney of the Defendant is not denied. Thus, the agreement was signed by constituted attorney of the Defendant. In the absence of any affidavit filed by Nikhil, statement of the Defendant that signature of Nikhil was obtained by force cannot be accepted. In the reply filed by the Defendant there is no reason disclosed as to why affidavit of the son of the Defendant has not been filed explaining the circumstances under which he signed the agreement. Therefore, it is prima facie established by the document at Exh.A that licence of the premises was created in favour of the Plaintiff and he was in possession. The agreement clearly mentions that an amount of Rs.8 lakh has been given as an interest free security deposit, which was to be refunded at the time of delivery of possession by the Plaintiff to the Defendant. It is not even the case of the Defendant that this amount of Rs.8 lakh was refunded by the Defendant to the Plaintiff and therefore, in terms of the agreement the Plaintiff would be entitled to continue in possession of the room. Now, admittedly the room is not in possession of the Plaintiff. It, therefore, follows that the Plaintiff who was legally entitled to the possession was dispossessed without authority of law and therefore, the Plaintiff has made out a strong prima facie case for grant of a decree in his favour under Section 6 of the Specific Relief Act.