UMESH BONDRE Vs. WELFRED FERNANDES

JUDGEMENT

(1.) This appeal is preferred by the unsuccessful defendant against the judgment and order passed by the 1st Additional Civil judge, Senior Division, Mapusa decreeing the respondent's - plaintiffs suit for mandatory and perpetual injunction against the defendant.

(2.) Heard the learned Counsel for the parties. Perused the record.

(3.) Respondent/plaintiff is the proprietor of M/s. Jesuwil Travel and Tours situated in Laxmi Apartments at Candolim and also an agent for different airlines. His wife is maintaining a public communication centre at the said premises. It is the case of the plaintiff that defendant approached one John Daniel alias john Tejpur and he was in search of a premises for restaurant. Therefore, defendant took him to one of his relatives by name Surendra kandolkar, who owned a property at Candolim beach. Said John had to carry out the construction and the expenses were to be deducted from the lease amount. Said John on condition that he should be entitled to run bar and restaurant for five years agreed and defendant agreed to make arrangements. The agreement between defendant and John Daniel was that premises should be given on lease and the money advanced by him would be adjusted towards the rent due to Surendra Kandolkar. Said John advanced Rs. 5,66,000/- and the premises was constructed. Defendant was paid initially, initial amount of Rs. 7,500/- for the purchase of wood for tables etc. and also paid some amount for various purchases. John daniel, therefore, started running the bar and restaurant in the name of 'gourmet Bar and restaurant' in the month of November, 1995 with the assistance of Mrs. Elizabeth Daniel and his daughter who had come from Italy and six friends of her were all rendering assistance from the bar and restaurant. Respondent-Plaintiff got acquainted with John Daniel in August, 1995 and had embarked upon a project under the name of Abalone Resorts. In the month of December, 1995, said Daniel expressed his difficulty in running the business as Elizabeth had gone to kerala and in the January, 1996 John Daniel offered to the plaintiff the suit premises on leave and licence basis or on franchise. Plaintiff informed him that he is not interested in the premises and is willing to buy only the equipments of the bar and restaurant. Therefore, the plaintiff entered into an agreement with said john to purchase the equipment and other movables including the furniture for rs. 5,00,000/ -. Accordingly, under the said agreement plaintiff paid Rs. 50,000/- to John on 26/02/1996 and balance was to be paid in instalments. It is the case of the plaintiff that on this agreement said John gave possession of all the articles as per the list and the keys of the premises to the plaintiff. The premises was made available to John by defendant, owner of the premises Mr. Surendra was in Middle East and the premises was given to John for five years. John had given the keys to the plaintiff to take the articles. However, on 24/05/1996 defendant without any reason put his own locks to the shutters and restrained the plaintiff from entering the premises, demolished the said cover, the frontage of the suit premises as well as removed one water pump and overheard water tank and also put new locks to the side door and hence this suit for permanent and mandatory injunction came to be filed. The defendant contested the suit, inter alia, denying all the allegations made by the plaintiff with submission that the suit is bad for non-joinder of parties as said Daniel who played pivotal role in the suit transaction was not joined in the suit as a party. It was further contended by the defendant that there was no agreement between John Daniel and defendant in respect of the suit premises. It was also denied by the defendant that premises was given on lease to John Daniel and amount of Rs. 5,66,000/- was advanced by said Daniel. Also according to the defendant the articles inside the restaurant belonged to Kandolkar and his wife and plaintiff had no right to keep the articles and hence the suit was sought to be dismissed with costs.