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High Court of Judicature at Madras
MISHRA & ALI MOHAMMED
The Oriental Hotels Limited Owning Taj Coromandel Hotel
Versus
Mrs. Parameswari Devi, Proprietrix Santhosh Jewellers, Madras
O.S.A. Nos. 233 of 1992 & 549 of 1991
Decided On :Decided on: 30-03-1994
LICENCE - LEASE - DISTINCTION - POSSESSION - SETTLED POSSESSION - INJUNCTION - GRANT OF - PRINCIPLES - LICENCEE - POSSESSION OF - NOT SETTLED POSSESSION - NO RIGHT TO INJUNCTION.
Fact of the Case:
The plaintiff, a licensee, sought a declaration of her right to possession and enjoyment of the suit property as a tenant and a permanent injunction against the defendant, the licensor, from interfering with her occupation and possession of the suit property. The plaintiff argued that she had settled possession of the premises and could not be dispossessed except by recourse to law.
Finding of the Court:
The court held that the plaintiff did not have settled possession of the premises and was not entitled to an injunction. The court found that the agreement between the parties created a licence, not a lease, and that the plaintiff's possession was not that of a person in settled possession. The court also found that the plaintiff had not established a prima facie case for possession.
Issues: 1. Whether the agreement between the parties created a licence or a lease? 2. Whether the plaintiff had settled possession of the premises? 3. Whether the plaintiff was entitled to an injunction?
Ratio Decidendi: 1. The court held that the agreement between the parties created a licence, not a lease, based on the following factors: - The agreement expressly stated that a purely personal privilege by way of a licence was being given to the plaintiff. - The plaintiff was not granted any interest or demise in the property. - The licensor retained dominion and lawful possession of the shop and had the right to direct the mode and manner of its use. - The plaintiff was not permitted to assign or transfer the licence. 2. The court held that the plaintiff did not have settled possession of the premises because: - She had entered the premises as a licensee, not as a tenant. - She did not have exclusive possession of the property. - The licensor retained control and supervision of the property. 3. The court held that the plaintiff was not entitled to an injunction because: - She had not established a prima facie case for possession. - She had not shown that she would suffer irreparable harm if the injunction was not granted.
Final Decision: The court allowed the appeal and set aside the impugned judgment. The application for a temporary injunction was dismissed.
MISHRA, J.
1. The Plaintiff/respondent herein has obtained under a deed of agreement the privilege to keep and maintain a shop and use the premises of the defendant/appellant for the said purpose. The agreement between the defendant/appellant described as the licensor on the one hand and the plaintiff/respondent described as the licensee on the other hand has got recitals to the effect that the licensor is the owner of the Taj Coromandal Hotel, that the licensee desired to obtain the privilege and accordingly approached and applied to the licensor for permission of the licensor for using, keeping and maintaining the shop under the control and supervision and administration of the licensor with the object of providing amenities and faculties to the residents, customers and visitors of the hotel. The terms and conditions incorporated in the agreement are as follows:—
“The Licensor shall be entitled at any time during the subsistence of this Agreement to call upon the Licensee by him/her fifteen days notice in writing to shift him/her/its business to any other shop made available by the Licensor and the Licensee shall comply with such requisition. The Licensee agrees to enter into an agreement in respect of such alternative accommodation offered to it/him/her upon terms mutatis mutandis to those contained in this Agreement.
It is expressly agreed that a purely personal privilege by way of a licence is being given to the licensee to use this shop with the object of providing facilities and amenities to the residents, customers and visitors of the Hotel and the Licensee shall not transfer or otherwise allow anyone else to avail of the Licence given to it/him/her. It is further expressly agreed that no interest or demise of any kind whether by way of tenancy or otherwise is being granted or created in favour of the Licensee, in the shop or any part thereof. It is agreed that the shop shall at all times be under control and supervision of the licensor and the licensor shall retain dominion and lawful possession of the shop and shall have the right to direct the mode and manner of the use of the shop so as to effectively provide for facilities and amenities to residents, customers and visitors of the Hotel, keeping in line with the decor and standard, of the licensors Five Star Hotel reputation.
The Licence is granted to the licensee personally and the licensee hereby undertakes not to make any change in his/her/its organisation or constitution of the firm either by introducing new partners of associate directly or indirectly in his/her/its business or by converting the ownership into any other form whatsoever.
The Licensee shall not assign his/her/its business as a going concern for consideration or otherwise. Nor shall he/she/it allow any other person to carry on his/her/its business in his/her/its place without the prior written consent of the licensor which the licensor shall be under no obligation to give.
The Licensee shall permit the licensor to retain with the Licensor a set of duplicate keys of the shop and the Licenses hereby permits the Licensor to make use of the said keys during any emergency such as fire, riot, etc. The Licensee shall not remove or replace the lock on the outer door or change the locking device on the said outer door of the shop, without the knowledge of the Licensor.
The Licensee shall decorate, furnish and maintain the internal structure of the shop in a manner which will be approved by the General Manager of the Hotel and shall carry out repair works of the shop at such times and in such manner as may be directed by the General Manager of the Hotel. If the shop is not repaired or maintained as aforesaid, the Licensor shall be entitled to repair or maintain the shop and on its doing so and making a demand in respect of cost thereof, the Licensee shall forthwith pay the same without raising any dispute.
The licensee shall keep the shop in clean and orderly conditions to the satisfaction of the Genera
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