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1996 Supreme(Bom) 436
IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
The East India Hotels Ltd.,.... Plaintiffs.
Versus
Syndicate Bank.... Defendant.
Suit No. 4000 of 1990, decided on 7-8-1996.
Advocates appeared :
S.H. Doctor, S.A. with H.J. Thakkar, S.U. Kamdar, Chirag Balsara, Lalit Bhasin, Ms Nina Gupta, R.C. Dhuru, K.B. Swamy and B.N. Das, for plaintiffs.
Ketan Parikh with V.V. Pai, for defendants.
Headnote:Section 47-Speclfic Relief Act, 1963, Sections 6(1), 6(4), 38 and 41-Court can grant relief to parties which are joint and equitable to avoid multiplicity of proceedings-Held-Plaintiff is in possession as owner-Defendant has failed to prove tenancy or renewal of licence-Plaintiff is entitled to decree for injunction,-However on second thoughts find that in the circumstances of the case, there is no such necessity. I have already pointed out that the decree under Section 6(1) of the Specific Relief Act is a conditional and temporary decree subject to the final rest of a decree in a title suit filed under Section 6(4) of the Act. As soon as a decree passed under Section 6(4) of the Act, the decree under Section 6(1) becomes inoperative and unenforceable. I therefore, feel that the suit can be decreed as per the plaint without l1ming recourse of Order VII, Rule 7 of C.P.C. It is well-settled that Court must do substantial justice between the parties and not justice on technical consideration.
Section 47-Speclfic Relief Act, 1963, Section 6(4)-lnjunct10n suit to restrain decree of execution under Section 6(4) and 6(1)-Decree under Section 6(1) Not final being summary remedy-Applicability of Section 47, CPC-Held-Protection of possession from execution of decree-Remedy of injunction is available for plaintiff.-A decree passed under Section 6(1) of the Specific Relief Act is not final. It is not subject to appeal. It is a summary remedy and such a decree is liable to be set aside in title suit under Section 6(4) of the Act and the law itself says that the decree under Section 6(1) is not final, but it is subject to the result of title suit tiled under Section 6(4) of the Act. A suit for declaration of title and for permanent injunction is maintainable.
Here injunction is asked to restrain the execution of the decree on the ground that the plaintiff is in possession on the basis of title and that the defendant has no right to claim possession. To such a suit Section 47 of C.P.C. is not applicable.
Section 6(1) and (4)-Decree for possession obtained by defendant under Section 6(1)-Remedy to sue in a suit is a summary remedy-Not a final judgments determining the rights of parties-Declaration and Injunction suit filed leaving to get remedy for possession-Title and Injunction suit under Section 6(4) cannot be entertained-Held-Not necessary the suit under Section 6(4) is only for establishment of title and possession-Suit for injunction is perfectly maintainable.-The most important contention urged by (the learned Counsel for) the defendant is that the present suit for injunction is not maintainable under Section 6(4) of the Specific Relief Act. It is argued that under that sub-section the plaintiffs remedy is only to file a suit for possession and not for injunction. It is further submitted that when the defendant has obtained a valid decree under sub-section (1) of Section 6, if a suit for injunction is entertained and a decree for injunction is passed, then the provisions of Section 6(1) of the Act becomes nugatory.
It is well settled that question of title cannot be gone into in such a suit; therefore the defendant of such suit can file a fresh suit for title and possession as mentioned in Section 6(4) of the said Act. It is well settled that the remedy to sue in Section 6(1) of the Act is a summary remedy. It is not a final Judgment determining the lights of parties.
Section 6(4)-See Code of Criminal Procedure Code, 1908, Section 47.
R.G. VAIDYANATHA, J. :---This is a suit for declaration and permanent injunction filed by the plaintiffs. The defendant has contested the suit by filing written statement. Issues were framed. Oral evidence was recorded on Commission. Two witnesses have been examined by the plaintiff and two witnesses on behalf of the defendants. Lengthy arguments were addressed by the respective Counsel of both the parties.
2.Plaintiffs case is as follows:
Plaintiff is a Company which is running hotels at different places including the Hotel Oberoi Towers at Nariman Point, Bombay. On the mezzanine of the ground floor 15000 sq. ft. was given to the defendant on Leave and Licence basis as per licence Deed dated 27th December, 1974 for a period of 12 years under which the defendant had agreed to give loan of Rs. 30 lacs to the plaintiffs. The Licence Fee was fixed at Rs. 60,000/-, which has to be adjusted towards the said loan. Well before the expiry of the period of 12 years of the licence period, the plaintiff wrote the letter in April 1986 to the defendant to vacate the premises on the expiry of 12 years. Then the defendant wrote a letter dated 8th July, 1986 to the plaintiffs seeking renewal of the Deed for 12 more years. Plaintiff has rejected the request for renewal. The defendant was called upon again to vacate the premises on the date of the expiry of the licence period. The plaintiff went on pressing the defendant to vacate the premises. Subsequently, the defendant wrote a letter dated 22nd July, 1989 stating that the Bank will not vacate the suit premises. Then there was further exchange of letters and notices between the parties. Fire broke out in the plaintiffs' Hotel including suit premises. Then defendant vacated the suit premises. Then subsequently, the defendant wrote a letter to the plaintiff to give back possession at the earliest but the plaintiffs' contention is that since the licence period has expired, the defendant has no right to ask for possession of the suit premises. Then defendant filed a suit in this Court in Suit No. 2735 of 1990 for possession of the suit premises under section 6 of the Specific Reliefs Act. A concession was made on behalf of the plaintiff in that suit that the plaintiff in that suit had been dispossessed as alleged in the plaint of that suit and this concession was made with prejudice only for the purpose of that suit. Then, after hearing both the parties, this Court decreed that suit by Judgment dated 6-11-1990. Inspite of that decree, the plaintiff is in continuous active possession of the suit premises. It is alleged that defendant has no right to use or occupy the suit premises. After expiry of the licence period the defendants occupation in the suit premises was of a trespassers and this position was neither agreed nor acquiesced by the plaintiffs at any time. Hence the suit is filed for declaration that the defendants have no right whatever to occupy the suit premises and that plaintiff is exclusively entitled to the same; for a declaration that the decree dated 6-11-1990 in Suit No. 2735 of 1990 is inoperative and incapable of execution except regarding the moveable properties; for an order of permanent injunction to restrain the defendant from executing the said decree dated 6-11-1990 except regarding movables.
3.The defence is as follows:
It is admitted that in 1974 the plaintiffs approached the defendant bank for a loan and accordingly, the defendant gave loan of Rs. 30 lacs at that time, on the request of defendants, the plaintiffs gave the suit premises to the defendant on licence for a period of 12 years subject to payment of licence fee or compensation of Rs. 60,000/- per month. The loan amount has been adjusted out of the licence fee and it is fully repaid. Then there is a reference in the written statement to several clauses of the licence Deed including a clause for renewal. It is stated that the defendant exercised its option for renewal of the period for a period 12 years. Th
