SHRIMATI TEJBAI TEJSHI DEDHIA Vs. TEJBAI TEJSHI

JUDGEMENT

(1.) This appeal arises from the judgment dated 10th February, 1998 passed by the learned Single Judge in Suit No.297 of 1976 whereby the suit has been decreed in favour of respondent No.1 against the appellants herein in terms of prayer clauses (a), (b) , (b)(ii) and (c) with costs. The judgment also requires the premises in occupation of the Court Receiver to be handed over to the Respondent-Bank in pursuance of a decree. The reliefs granted under the said decree include declaration that the Agreement dated 3rd May, 1973 Exhibit 'A' to the plaint to be valid and subsisting, direction to the appellants to hand over possession of the premises mentioned in Clause 6(i) of the said Agreement and to do all such things as may be necessary and to execute all such deeds, writings and papers as may be necessary to effectively carry out the said Agreement and further to pay to the respondent No.1 Rs.2,500/-per month from the date of the suit till possession of the premises is handed over to them and further direction to the respondent Nos.2 and 3 to endeavour to give effect to the said agreement.

(2.) The appellants are the owners of the plot of land bearing No.118/122, Kazi Syed Street, Mumbai 400 009. There was a notice issued by the Bombay Municipal Corporation for demolition of the said building on 4th June, 1946. As two of the tenants in occupation of the premises refused to hand over possession thereof, suits came to be filed for their eviction in the Court of Small Causes, Mumbai, under Section 13(1)hhh of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called as "the Rent Act", being R.A.E.Suit No.53/387 of 1964 and R.A.E.Suit No.109/755 of 1964. The matter was contested by the tenants upto the Apex Court without any success. On 3rd May, 1973, an agreement came to be executed between the appellants and respondent No.1 who was one of the tenants whereby respondent No.1 agreed to vacate the premises in its occupation admeasuring 1200 sq. ft. on the 1st floor of the building and to surrender leasehold rights, and as against this, the appellants agreed to allot on rental basis an area admeasuring 1200 sq.ft. carpet area on the ground floor and 1200 sq.ft. carpet area on the mezzanine floor along with amenities of construction of strong room, bathroom and toilets at their cost in the new building to be constructed at the place of the old building. It was also agreed that newly constructed premises shall be handed over to respondent No.1 within a period of 1 and 1/2 years, failing which the appellants shall pay compensation of Rs.2,500/-per month to respondent No.1 to be calculated from the date of expiry of the period of 1 and 1/2 years till respondent No.1 is handed over with the possession of new premises as agreed upon under the agreement. Pursuant to the said agreement, respondent No.1 vacated the old premises and delivered the possession to the appellants and the appellants thereafter demolished the old structure and constructed a new building in its place. On 5th March, 1976, a suit came to be filed by respondent No.1 against the appellants for specific performance of the agreement dated 3rd May, 1973 and for the claim of Rs.2,500/- per month from the date of filing of the suit till delivery of possession of new premises. By the impugned judgment, the suit was accordingly decreed. The impugned judgment has been challenged in the present appeal. Pursuant to the order passed at the time of admission, the appellants had deposited a sum of Rs.6,85,000/- and pursuant to the leave granted by the Court on 5th November, 1998. Respondent No. 1 has withdrawn the said amount by furnishing necessary undertaking. Meanwhile, on 9th March, 1976, in terms of the order dated 8th March, 1976 passed in Notice of Motion No.271 of 1976, the appellants handed over vacant possession of the new premises to the Court Receiver and since then the premises are under lock and key with the Court Receiver.

(3.) The learned Single Judge under the impugned judgment held that in the facts and circumstances of the case this Court has jurisdiction to entertain the suit as the same being a suit for specific performance of the agreement between the parties who want to establish the relationship of landlord and tenant on giving effect to the said agreement and that therefore Section 28 of the Rent Act has no application to the case in hand. It was further held that the suit agreement is binding on all the appellants and is enforceable at law, and is not null and void as alleged by the appellants. It was also held that respondent No.1 vacated the earlier premises in their occupation and allowed the appellants to demolish the same, relying upon promise by the appellants to hand over alternate accommodation to respondent No.1 in the new building to be constructed by and on behalf of or at the instance of appellants. It was also held that respondent No.1 is entitled for damages from the date of the suit till the date of payment.