2006 Supreme(Bom) 760

IN THE HIGH COURT OF BOMBAY
S. U. Kamdar, J.
JAYANT L. SHAH - Appellant
vs.
NARANJI LALJI KHONA - Respondent
Advocate Appeared

For plaintiff: Vijay Dhadam instructed by K. M. Mehta
For defendant: Mrs. U. K. Shah instructed by K. D. Shah
Suit No. 91 of 1980 decided on 2-5-2006. (Bombay)

Headnote:Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Sections 15-A and 28 Jurisdiction Declaratory and possessory suit on basis of Will Objection raised Property possessed on basis of leave and licence exclusive jurisdiction with SCC Court Defendant as licencee became protected vide amendment of Section 15-A, entitled to get protected Under Section 28, this Court has no jurisdiction to entertain and try present suit. In so far as the present case is concerned, though it is an admitted position that though two conducting agreements are entered into by the deceased and the defendant on the circumstances and the material and evidence produced on record it is established by the defendant that the said conducting agreements are in fact not conducting agreements but the agreements of leave and licences which have been executed by the deceased. Apart from the aforesaid position taking into consideration the various evidence which has been produced by the defendant in the present case. The conducting agreements which are also on record indicate that Clause 2 provides for handing over of the stock-in-trade. However, the defendant has been able to establish that in fact it was not handing over of the stock-in-trade but in fact the said goods were purchased and he has produced the books of accounts to show payment in respect of each and every goods which has been purchased by him from the deceased. He has also produced the books of accounts that he has been paying the compensation fixed and not on the basis of the business profit which was earned from the said business. The fixed amount paid by the defendant is not in dispute though it is styled as royalty and not as compensation or rent. However, the most crucial document which has been produced by the defendant is that the defendant never conducted for and on behalf of the deceased. He was conducting business in his own right and he has obtained all necessary licences independently including the Bombay Shops and Establishments licence, the BMC licence and various other licences as required. He has also assessed himself to the sales tax in his own name. He has filed the assessment record and the orders passed by the Sales Tax Authorities independently in his name which are on record. Furthermore, the books of accounts indicate that the profit earned by the said business has been appropriated by the defendant exclusively to himself. It also indicates that even when some grocery items are delivered to the deceased in fact the amount has been adjusted against the payment of the royalty. All the aforesaid circumstances, coupled with the oral evidence of the said defendant indicate that in fact the defendant was not conducting business on the part of the deceased but he was running the conducting business in his own independent right independently and not at the instance or on behalf of the plaintiff.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Sections 15-A and 28 Possessory suit Contention Defendant possessed by conducting agreement and it was already expired, defendant is therefore a trespasser Rebuttal Conducting agreement by way of leave and licence agreement Evidence coupled with admitted facts lead to conclusion that in fact so-called conducting agreement was nothing but a leave and licence agreement and not a conducting agreement. The defendant was actually running the business in his own right independently and exclusively and was not dependent upon the plaintiff herein. Thus, in fact the totality of the circumstances and the oral evidence led between the parties it is established that the conducting agreement was in fact nothing but leave and licence agreement. It is now settled law that in case of the leave and licence agreement or a conducting agreement what is required to be seen by the Court is the true and correct intention of the parties at the time of executing the said agreements. It is not in dispute that originally Narshi Khona was a tenant in respect of the said property. It is also not in dispute that at the relevant time sub-letting was prohibited under the Rent Act. Thus in my opinion the aforesaid evidence coupled with admitted facts an irresistible conclusion is that in fact the so-called conducting agreement was nothing but a leave and licence agreement in favour of the defendant and it was not a conducting agreement in so far as the premises are concerned.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Sections 28 and 15-A Presidency Small Causes Court Act, Section 41 Suit for declaration that defendant has no right, title and interest and claim possession of property Agreement between parties was entered into for leave and licence Agreement between licensor and licensee is required to be filed before Small Causes Court Leave and licence agreement was subsisting on 1.2.1973 and it expired only in 1976 by efflux of time Defendant became protected licensee by virtue of amendment of Bombay Rent Act and thus he is a deemed tenant and he is entitled to protection The suit, therefore, is exclusively triable by Small Causes Court and High Court has no jurisdiction to entertain and try the suit.