1. This Suit is filed for a declaration that the agreement dated 18th October, 1977, which is the last agreement between the parties, has been duly cancelled and/or terminated and/or rescinded by the Plaintiff and the Defendants have no right, title and interest in the Suit flat No.10 on the 3rd floor and garage in the basement of ‘Asha Mahal’ situated at 46B, Pedder Road, Bombay- 400 026. Upon such declaration, the Plaintiff has claimed possession of the Suit flat, damages of Rs.10,000/- and mesne profits of Rs.1450/- p.m. which would be computed after the decree in this Suit, if any, is passed.

2. TheDefendants’ father was the Plaintiff’s licencee. The leave and licence agreement was initially executed between those parties on 13.08.1969 for a period of 11 months. Thereafter two other agreements were executed for periods of 11 months each. The period of 33 months of licence expired on 14.05.1972. The amendment to the Bombay Rent Act regarding licences came into force on 01.02.1973. The Defendants’ father was not a licencee of the Plaintiff under the valid and subsisting licence on that date, but he was holding over the Suit flat on the date of amendment. He claims to be a protected tenant under the Bombay Rent Act. That claim, aside from being outside the inherent jurisdiction of this Court, does not matter in view of further contractual relationship between the parties outside tenancy. The Plaintiff claims that the Defendants’ father was not a protected tenant since the licence period under the three licences had expired before the Bombay Rent Act was amended.

3. The Plaintiff had given a notice to the Defendants’ father to vacate on 04.05.1972. He did not vacate. Those parties entered into an agreement instead on 14.08.1973 for purchase of the Suit flat by the Defendants’ father. Part payment was made under the said agreement. The Defendants’ father expired on 08.10.1974. Thereafter the parties to this Suit entered into a fresh agreement on 18.10.1977 for sale of the Suit flat to the Defendants upon a higher consideration. Whereas under the agreement dated 14.08.1973 the purchase price of the Suit flat was Rs.1,35,250/-, under the fresh agreement dated 18.10.1977, the purchase price was fixed at Rs.1,75,350/-. Part payment of Rs.85,000/- made by the Defendants’ father under the earlier agreement was accepted by the parties. From the remaining unpaid earlier consideration of Rs.90,350/- a further part payment of Rs.25,000/-came to be made under the second agreement between the parties after the death of their father leaving a balance amount of Rs. 65,350/-. The Defendants agreed to make payment of balance consideration by three post dated cheques (PDCs) 18.11.1977, 03.12.1977 and 15.01.1978. All the cheques were dishonoured upon presentation. The Plaintiff claims that for no further payment has been made as agreed. The Defendants claim that the further amount of Rs.10,000/- was sent to the Plaintiff which was refused. The Defendants claim that they were ready and willing to pay the balance consideration. They still claim that they are ready and willing to do so. They have made no payments thereafter.

4. The Plaintiff terminated the agreement dated 18.10.1977 under her notice of termination dated 31.07.1980 for non payment of balance consideration. The Plaintiff seeks to recover possession of the Suit flat from the Defendants. Hence the aforesaid Suit for declaration.

5. All these aforesaid facts are admitted. The Defendants have claimed that consequent upon continuance of their possession since prior to May, 1972, they have become protected tenants. They further claim that consequent upon their possession, they cannot be evicted. The Plaintiff claims that the agreement dated 14.08.1973 terminated and rescinded the earlier agreement of licence. The Plaintiff further claims that under the fresh agreement again entered into by the Defendants with the Plaintiff on 18.10.1977, the earlier agreement stood rescinded, t