TULSIDAS KHIMJI Vs. KHUSHIRAM CHIMANLAL PVT LTD

JUDGEMENT

(1.) Plaintiffs, M/s.Tulsidas Khimji, is a partnership firm registered under the Indian Partnership Act and carries on business as warehousing and clearing agents at Bombay. The defendant Khushiram Chimanlal Private Ltd., is a company incorporated under the provisions of the Companies Act, 1956 having their registered office at 21, Broach Street, Bombay-400 009. The defendant-company carries on business as importers and general merchants. For the purpose of its business, the Plaintiffs-firm owns number of godowns and warehouses. The defendant is alleged to have approached plaintiff-firm in 1961 through broker, Mr.Mulsen Narandas, requesting permission to utilise the space in the godown bearing No.TK "N" at Sewri for storing its goods and articles for such period as it may be convenient to the plaintiff. The defendant undertook to pay storage charges every month for this space spotted out by the plaintiffs and given to the defendant for use in the godown. The defendants are alleged to have represented that they will forthwith remove and withdraw their goods, articles and things from the said godown as and when the defendants were required to do so. The defendants sought such permission to utilize space in the godown for short period only and on the expiry of the said period, if the plaintiffs found feasible, to extend the permission for further period, the plaintiffs could do so but in no event the defendant could compel the plaintiff for extension of such permission beyond the stipulated period. The defendant agreed to the said terms and promised to abide by the same. Pursuant to the same, the plaintiffs permitted the defendant to utilize space allotted to it in the godown referred to above for storing its goods and articles. The aforesaid terms and conditions were recorded in a letter of 4th May 1961 by the plaintiffs to the defendant which were confirmed by the defendant by making an endorsement at the foot of the said letter dated 4th May 1961. For the said period of one year, the defendant agreed to pay a sum of Rs.4,000/- in four equal quarterly instalments of Rs.1,000/- towards storage and commission charges for storing their F.P. Cotton bales and Cotton Waste F.P. bales and goods of general marchandise. The defendant had undertaken to store its own goods and not of others in the said space and undertook to remove its goods on expiry of the period on 31st March 1962.

(2.) After the expiry of the said period, however , the said terms were extended from time to time, the last letter being of 29th September 1972. All other terms of the said letter referred to above of 4th May 1961 were incorporated in subsequent letters with a variation that storage charges were increased first to Rs.4,900/- per year for the period from 1st April 1968 to 31st March 1969 payable in four quarterly instalments. It is the case of the plaintiff that the defendant failed to pay the storage charges regularly and further asserted to have paid such charges upto 31st March 1974 but it was found that the defendant paid charges only upto 30th September 1973. As such, the plaintiff withdrew/terminated the agreement on 29th September 1972 by their advocate's letter dated 20th December 1977. Accordingly, after termination/revocation of the said agreement, position of the defendant is stated to be that of trespasser in the said godown. Further, the defendant is alleged to have committed other breaches of the agreement viz., stored goods of others and started making profits. The defendant also attempted to have electricity connection without consent of the plaintiff. That is how by their letter of termination/revocation of the licence dated 20th December 1977, the plaintiffs called upon the defendants to quit and deliver vacant possession of the space in the said godown and pay the charges that were in arrears.The defendant by reply to the said letter refused to do so and therefore, the plaintiff has instituted the present suit for recovery of possession and also injunction restraining the defendant from taking any further steps for installation of electricity connection. By mandatory injunction, the plaintiffs has also sought to compel the defendant to remove the goods/articles stored in the space in the godown of the plaintiff.

(3.) The defendant filed its written statement on 20th June 1978 and further amended the same on 9th March 1987 pursuant to the order dated 2nd March 1987. At the outset the defendant contended that the suit of the plaintiff is misconceived and bad in law and not maintainable. It is contended that the defendant is a licensee of the suit godown and the suit is between the licensor and licensee for recovery of the possession. That is how the suit is within the exclusive jurisdiction of the Court of Small Causes under Bombay Presidency Small Cause Courts Act as applicable to Bombay. As such, this Court is having no jurisdiction to entertain and try the suit and, therefore, the same is liable to be dismissed. The defendant also contends that as a licensee, it was in possession of the godown from 1st February 1973 and therefore is a deemed tenant/protected licensee, under S.15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended (hereinafter referred to as the Rent Act) and as such, the suit is not maintainable. Under S.28 of the said Act, the Small Cause Court, Bombay alone had jurisdiction to entertain and try such a suit. On merits, it is contended that not only a space in godown but the entire godown was given to the defendant as a licensee. However, the contents of the letter dated 4th May 1961 and subsequent letters, last being 29th September 1972 are admitted by the defendant. It is, however, denied that the defendant failed to pay the storage charges regularly and committed default. It is denied that the defendant has unlawfully and illegally erected additional structure on the back side of the godown or constructed additional structure. It is contended that the said godown is used by the defendant for its own purpose and for storing the goods of its sister concern. It is maintained that the defendant has paid storage charges/compensation upon 31st March 1974. However, the defendant subject to settlement of accounts forwarded a cheque of Rs.12,658.33 and contacted the plaintiff to settle the accounts. Thereafter the plaintiffs failed to settle the account despite various attempts made in that behalf by the defendant. It is denied that the defendant is trespasser of the suit premises. The alleged version given that the defendant would commit nuisance and carry out further structural alterations if the licence is not renewed is denied. Since there was no electricity in the said godown the defendant approached B.E.S.T but the plaintiff objected for the same and prevented the BEST Authorities from giving electricity connection to the defendant. As such, it is denied that the defendant is liable to restore possession of the suit godown to the plaintiff. Other ancillary reliefs claimed by the plaintiff regarding mandatory injunction and injunction restraining the defendant from storing goods etc., as well as appointment of Receiver are opposed.