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2020 Supreme(Bom) 1448
IN THE HIGH COURT OF BOMBAY
A.K. Menon, J.
Goldie Sud - Appellants
Vs.
Rajesh Dwarkadas Tulsiani and Ors. - Respondent
Interim Application No. 2562 of 2020
Decided On : 30-09-2020
Advocate Appeared:
For the Appellant :Rajni Iyer, Sr. Advocate and J.K. Shah, i/by Anju Sawlani
For the Respondents: Shoaib I. Memon, Sandip Parikh i/b Neha Mehta and Jyoti Chavan, Assistant Government Pleader
Prima facie evidence of possession and landlord's consent is essential for the transfer of tenancy to take effect.
Headnote:
Ad-interim relief refused - Tenancy Agreement - None
Fact of the Case:
The plaintiff sought declaration of the validity of a Transfer of Tenancy Agreement, specific performance of the agreement, damages, and injunction against creating third party rights. The plaintiff claimed to have entered into an agreement with the 1st defendant for the transfer of tenancy rights of a commercial shop.
Finding of the Court:
The court found that the plaintiff failed to establish a prima facie case for possession and transfer of tenancy. The court noted discrepancies in the documents and lack of landlord's consent for the transfer. The court also observed ongoing police investigation and disputes among the defendants, indicating a complex situation.
Issues: Validity of Transfer of Tenancy Agreement, Possession, Landlord's Consent, Disputes among Defendants
Ratio Decidendi: The court held that without landlord's consent, no transfer of tenancy can take effect. The court also emphasized the need for a detailed hearing to resolve the complex factual disputes.
Final Decision: Ad-interim relief was refused, and the case was listed for further proceedings.
ORDER :
A.K. Menon, J.
1. By an order of even date, ad-interim reliefs were refused for reasons recorded separately. The reasons are given below.
2. The plaintiff seeks the following reliefs;
(i) a declaration that the Transfer of Tenancy Agreement dated 30 July, 2020 ("TTA"-Exhibit-F to the plaint) between the plaintiff and the 1 defendant is valid, subsisting, binding and enforceable against the 1 defendant.
(ii) Specific performance of TTA by accepting Rs. 3 crores as consideration and by attending the office of the Sub-Registrar of Assurances for execution and registration of the TTA. In the alternative, an order and decree appointing a Registrar of this court or other fit and proper person to execute and register the TTA.
(iii) Damages amounting to Rs. 6.11 crores on account of mental agony, harassment and loss of good name and reputation of the plaintiff.
(iv) In the interregnum, a permanent injunction restraining defendant No. 1 from creating any third party rights in relation to the suit premises and against obstructing ingress and egress of the plaintiff to the suit premises and inter alia to use the premises for storing merchandise.
3. At this ad-interim stage, Ms. Iyer learned Senior Advocate appearing in support states that she seeks relief in terms of prayer clauses A(i), A(ii) and A(iii). Viz. three temporary injunctions restraining the defendants and his family members from creating third party rights in the suit premises, from obstructing the plaintiff's ingress and egress to and from the suit premises and restraining the defendant No. 1 and his servants, agents and family members from obstructing the plaintiff from storing merchandise in the suit premises. The facts which lead to the present suit are briefly set out below.
4. The suit premises is commercial shop described as Shop A on the ground floor of a building at Vithalwadi, Shaikh Memon Street, Mumbai - 400 002 admeasuring about 319 sq.ft. carpet area with mezzanine and a toilet appurtenant thereto. The 1st defendant is said to be a statutory tenant in respect of the suit premises; the 2nd defendant is the land-lady of the building housing the suit premises; the 3rd defendant is the Senior Inspector of Police, L.T. Marg Police Station. Defendant Nos. 2 and 3 are formal parties and no relief is sought against them.
5. According to Ms. Iyer, the plaintiff being in search of shop premises in Vithalwadi area was approached by one Supreme Singh Indrajeet Chaddha, on behalf of the 1st defendant, recommending the suit premises as being suitable for the plaintiff's business and that defendant No. 1 was ready and willing to transfer tenancy rights in respect of the said shop premises. The plaintiff claims that the said Chaddha represented to him that defendant No. 2 had agreed to the transfer of tenancy on payment of proportionate consideration. The plaintiff claims to have inspected the premises along with Mr. Chaddha and in the presence of the 1st defendant. The premises were found suitable and negotiations allegedly took place between the plaintiff and defendant No. 1 and terms were agreed upon. Defendant No. 1 allegedly agreed to pay consideration to defendant No. 2 out of the consideration payable by the plaintiff to him.
6. Ms. Iyer submitted that on 12 December, 2000, the earlier tenant one Setpal informed the then landlord, (late husband of the 2nd defendant), that Setpal had transferred the tenancy in respect of the suit premises Shop A, being part of a larger shop, jointly in favour of one Dwarkadas Tulsiani and the 1st defendant. Shop B was to be let in the names of Dwarkadas Tulsiani and the 1st defendant's brother Deepak Dwarkadas Tulsiani. In this manner, Dwarkadas Tulsiani is said to have secured notional bifurcation of the shops so that the benefit of the tenancy would therefore be available to both his sons - the 1 defendant and his brother - Deepak. Defendant No. 1 is said to have handed over copies of some rent receipts to the plaintiff during these neg
