POLAROID INDIA PVT LTD Vs. NAV NIRMAN CO

JUDGEMENT

(1.) THE present suit is filed for the recovery of the amount given under leave and licence agreement towards the security deposit. Under the said leave and licence agreement the defendant have given to the plaintiff the premises on leave and licence basis and on return of the premises the security deposit of Rs. 1,60,00,000/- was required to be returned by the defendant to the plaintiff. The defendant has offered the said premises and by letter dated 12. 8. 99 even removed themselves from the premises and offered to hand over possession to the defendant. The defendant however has not accepted the possession thereof and contends that there is infact an agreement to sale the said premises. Learned counsel for the defendant in support of his contention has contended that actual arrangement which was arrived at was of sale of the said premises to the plaintiff and he relies upon two subsequent agreements being dated 1. 7. 95 and an undated agreement. The agreement dated 1. 7. 95 merely states that during the period of licence the agreement will not be terminated by either of the parties and no effect will be given to Clause-9 and 12 of the said agreement. The second agreement which is an undated agreement inter-alia gives an option in favour of the plaintiff to purchase the said premises from the defendants at any time within last three months of the licence period on the various terms and conditions which are set out therein. It is an admitted position that no such option has been exercised by the plaintiff for the purchase of the said premises.

(2.) THE terms and conditions of the said option agreement inter-alia provided that if the plaintiff is not interested in exercising the option to continue the leave and licence agreement then in that event he will he have an option to purchase form the defendant the said premises at a price of Rs. 1,75,00,000/ -. This option was required to be exercised by the purchaser during the last three months of the licence agreement i. e. from 15. 4. 1999 to 14. 7. 1999. Clause-2 of the said agreement further provides that this option has to be exercised by the purchaser by delivering the vendor a letter intimating the exercise of the said option and that also should be strictly within the period of 2 months as contemplated thereof. The said option further required a forwarding to the defendant a sum of Rs. 15. 00 lacs and that the vendor were given the power to adjust the security deposit amount of Rs. 1,60,00,000/against the balance consideration. The address attached to the said letter was also required to be specified in Clause 2 of the said agreement. Further Page 751 under Clause 3 of the said agreement immediately on exercise of option, the agreement was required to be filed with the Income Tax authorities by filing Form 37 (i) for obtaining no objection under Section 269 (u) (c) of the Income Tax Act. In Clause 4 it was provided that if such option is exercised then a regular agreement for sale should be entered into between the parties. What is most crucial in the present case is Clause 5 of the said agreement. The said Clause 5 provided that on failure of the plaintiff to exercise the option within a period stipulated therein and in a manner stipulating in the said option agreement the same would lapse. Clause 5 of the said agreement reads as under :

(3.) IT is an admitted position that no such option has been exercised by the plaintiff. On the contrary the purchaser has declined to exercise the option by giving a notice dated 12. 6. 99 and have terminated the said leave and licence agreement. On such termination of leave and licence agreements the plaintiffs has sought refund of the amount of security deposit of Rs. 1,60,00,000/- on their handing back possession of the said premises.