RUSTOM K. AMUYAN Vs. MANU SUBEDAR

JUDGEMENT

(1.) THIS appeal is filed by the plaintiff against the dismissal of a Notice of Motion for injunction taken out by him. The respondent is a trustee of Lotus Trust which owns the property known as Lotus Cinema on Dr. Annie Besant Road, Bombay -18. He is Chairman of the board of trustees. The construction of the Cinema house was completed somewhere about 1957. It appears that there were negotiations between the plaintiff and the trustees for conducting a canteen in the Cinema House about that time. On March 15, 1957, the respondent addressed a letter to the plaintiff as follows: With reference to your letter dated 14th of March, you are under a mis -apprehension. The other stalls in the theatre would deal with other things like books, clothes or fancy articles, but the eatables and drinking required by the Cinema visitors would be confined to the Conductor of the canteen on the terms and conditions which we have fixed with you. We strongly disapprove of your attitude in prolonging the negotiations after everything is fixed. If you are still ready, as you inform us in your letter, please call at this office early. Yours faithfully, FOR THE LOTUS TRUST Sd/ - Manu Subedar, Chairman Thereafter a formal agreement between the parties was executed. This agreement gave the right of conducting the canteen to the Contractors i.e. Asian Stores and Restaurant which was apparently a partnership on the terms mentioned therein. It has been described as an agreement of licence to conduct the said canteen in the premises of the Lotus Cinema, in the name of Lotus Canteen and Restaurant. It appears that recently there have been disputes between the partners of the business and a suit is pending in the City Civil Court, for dissolution and accounts of the partnership. By an order in the said suit a preliminary decree has been passed by which the plaintiff is allowed to continue doing business on certain terms until the winding up is completed. It appears that the trustees of the Trust, feeling that because of the disputes between the partners, services at the canteen were not properly rendered, terminated the licence, and, I understand that a suit is pending on the Original Side of the High Court for recovery of possession of the premises. Another suit has been filed by the plaintiff in the Small Causes Court for injunction, restraining the trustees from obtaining possession of the properties, his allegation being that the agreement is one of tenancy and the partnership is entitled to protection under the Bent Act. As these proceedings have been taken, the trustees started building other stalls with the intention of having the canteen either of their own or through someone else. The plaintiff, therefore, instituted the present suit for an injunction restraining the defendants trustees from starting a rival canteen, on the basis of the letter dated March 15, 1957, referred to above. The Notice of Motion was taken out by the plaintiff for obtaining an interim injunction. The learned Judge rejected the same on two grounds (1) that the actual agreement between the parties duly signed did not contain the term mentioned in the letter above referred to and (2) in any event compensation would be adequate remedy and injunction, therefore, was not called for.

(2.) IN this appeal it is urged that the learned trial Judge was in error in dismissing the Notice of Motion. It is argued that as long as the plaintiff is entitled to remain in the property, whether by reason of the contract between the parties or under any of the provisions of the Bent Restrictions Act, the plaintiff is entitled to the benefit of the assurance contained in the letter above referred to. It is argued that though the agreement between the parties is described as licence, in effect and substance having regard to the principles for determining the question, it is a tenancy and the plaintiff is, therefore, entitled to remain in possession of the property and as long as he remains in possession, he is entitled to the benefit of the assurance.

(3.) IN the first place though this letter had preceded the actual contract between the parties, such a term was not embodied in it. If the parties intended to be bound by any such term, surely it would have been incorporated in the actual agreement. Truly speaking it is impossible to regard it as a term of the contract between the parties. Even if it is assumed to be part of the agreement, in my view it will not make any difference.