VIRJI RAISEY Vs. ANAND ISSARDAS MOTIANI

JUDGEMENT

(1.) THE parties to this petition will be hereafter referred to as "the Plaintiff and Defendant Nos. 1 to 5".

(2.) THE plaintiff is the owner of the suit property bearing Plot No. 300, Final Plot No. 928 of T.P. Scheme No. IV, Mahim Area, Bombay, admeasuring 2805 sq. yards. Defendant Nos. 1 to 5 were partners in a partnership firm in the name and style of M/s. Anita Construction Co., which has been dissolved. The said partners of M/s. Anita Construction Co., of which defendant Nos. 1 to 4 were partners, was the lessee of the suit plot of land in accordance with the terms of the lease deed dated 9th October, 1975. It is the case of the plaintiff that on 19th October, 1977 defendant Nos. 1 to 4 entered into an Agreement with Defendant No. 5 which is also a partnership firm dealing in construction business, under which defendant Nos. 1 to 4 have parted with the possession of a part of the demised premises with a view to enable defendant No. 5 to put up a construction thereon what is known as "ownership basis". The defendant Nos. 1 to 4 have received the full consideration from the defendant Nos. 5 in respect of the part of demised premises to the extent of Rs. 3,25,000/-. According to the plaintiff, the defendant No. 5 has already taken possession of the part of the premises under the said Agreement dated 19th October, 1977 between the defendant Nos. 1 to 4 and defendant No. 5. According to the plaintiff the said Agreement was arrived at clandestinely and behind the back of the plaintiff. The fact that an interest in the part of the demised premises was already created in favour of defendant No. 5 by defendant Nos. 1 to 4 has been always kept a secret from the plaintiff and also from his Laxmichand Virji who is the Constituted Attorney of the plaintiff. As per the Lease dated 9th October, 1975 between Nos. 1 to 4 on the one hand and the plaintiff on the other, the defendant Nos. 1 to 4 were allowed to develop the plot in consultation with the plaintiff and under the supervision of the plaintiff's Architect. It was also clearly understood between the parties that in the event of any interest being created in favour of the outsiders in the demised premises, the same was to be created after obtaining the consent in writing from the plaintiff. As one of the terms of deed dated 9th October, 1975, the rent free period was upto 31st December, 1976 which later on by consent of the parties was extended to 15th October, 1978. It is the grievance of the plaintiff that although the rent free period of the lease deed was extended upto 15th October, 1978, the defendant Nos. 1 to 4 have fallen in arrears of rent with effect from 15th October, 1978. Ultimately the plaintiff by his Advocate's letter dated 4th April, 1979, informed the defendant Nos. 1 to 4 that the lease was being determined on the ground of non-payment of rent. After receiving the letter of the plaintiff's Advocate dated 4th April, 1979, the defendant Nos. 1 to 4 in the reply contended that a sum of Rs. 18,000/- deposited with the plaintiff's Attorney at the time of the Agreement For Lease dated 27th December, 1974 was liable to be adjusted before any arrears of rent was demanded. According to the plaintiff, the said amount of Rs. 18,000/- was retained as a security deposit for the purpose of creation of the tenancy and, therefore, was not liable to be adjusted against the payment of rent. After the correspondence was ensued between the plaintiff and defendant Nos. 1 to 5, the plaintiff had filed this suit, being suit Stamp No. 4677 of 1977 against defendant Nos. 1 to 5 for eviction alleging non-payment of rent and the intended assignment of the interest in suit premises by defendant Nos. 1 to 4 in favour of defendant No. 5. A formal defect in the Notice dated 4th April, 1979 having been noticed, the plaintiff's Advocate issued one more Notice dated 2nd October, 1979 against defendant Nos. 1 to 4 demanding the arrears of rent. Notice for injunction was taken out which was heard on 15th October, 1979. The trial Court while vacating the order of interim injunction gave an opportunity to defendant Nos. 1 to 4 to deposit the arrears of rent within a period of 4 weeks from the date of the said order. On the 9th of November, 1979, as per the order passed by the trial Court the amount of Rs. 8,288.25 P. was deposited, according to the plaintiff by defendant No. 5.

(3.) THE trial Court has recorded the finding against the plaintiff under Section 12(3)(a) of the Bombay Rent Act. However, finding was recorded by the trial Court in favour of the plaintiff under Section 13(1)(e) of the Bombay Rent Act. Accordingly, on 29th of January, 1983 the trial Court decreed the suit and directed defendant Nos. 1 to 5 to hand over possession of the suit premises along with the building thereon known as "Shilpa Sadan" on or before 29th February, 1984.