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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.97 OF 2022

Aero Club & Anr.

..

Appellants

Versus

M/s. Putcha Property Pvt. Ltd.

..

Respondent

…

Ms.Poonam Lao with Mr.Ajay Sharma, Ms.Geeta Mohanty and

Mr.Madhukar Jadhav i/b Mr.Chaitanya Jadhav for the

Appellants.

Mr.Prasad P. Pathare for the Respondent.

...

CORAM: BHARATI DANGRE, J.

DATED : 20^th APRIL, 2022

ORDER:-

1.

The present appeal is fled by the appellants, being

aggrieved by the order dated 11/11/2021 passed by the

learned Civil Judge, Senior Division, Thane in a Review

Application (Exh.66) in Commercial Suit No.2 of 2017. The

order is assailed on the ground, of being contrary to the settled

position of law, as the trial Judge has seriously erred in law by

not considering the letter and spirit of Order 18 Rule 3A of the

Code of Civil Procedure (In short, “the Code”) and has

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reviewed it’s own order dated 13/02/2020, by which the

evidence of the Chairman of the plaintiff company (respondent

herein), came to be discarded. The ground in the appeal, the

Court failed to consider the principle fowing from Order 18

Rule 3A and has considered the provision to be directory in

nature.

2.

Before I proceed to deal with the arguments advanced in

appeal, in support and in opposition of the impugned order, it

would be convenient to refer to the few facts in the

background.

3.

Civil Suit No.2 of 2017 came to be fled by M/s.Putcha

Properties Pvt. Ltd (the respondent, herein) and as the title of

the suit indicated, the Private Limited Company, it was

represented through it’s Executive Assistant to Chairman and

Authorised representative Mr.Vikas Vasant Waingnakar. The

suit fled by the plaintiff sought for recovery of arrears of

revenue share, license fees, compensation and damages.

The plaintiff pleaded that the company had purchased a

unit bearing No.G10 and G11, admeasuring about 909 square

feet in carpet area on the ground foor of “Glomax Mall”,

situated at Sector No.2, Plot No.17, 18 and 19, Kharghar

Station Road, Kharghar, Navi Mumbai. Defendant No.1,

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engaged in business of Shoes, Apparels and Accessories Stores

under the brand name and style “Woodland/Woods”,

approached the plaintiff and expressed it’s interest in

acquiring the premises from the plaintiff on leave and license

basis for the purpose of establishing and operating their brand

store for selling their goods

Negotiations between the plaintiff and defendant No.1

resulted in the registration of an agreement, captioned as

‘Leave and License Agreement’ dtd.20/05/2014, between the

defendant No.1, the authorised representative of defendant

No.1 and the plaintiff. The agreement covered a period of fve

years commencing from the expiry of 60 days from the date of

handing over licensed premises to the defendants as per the

terms and conditions set out in the deed.

4.

I need not delve further, in other terms of the agreement

by referring to the agreement clause-wise or whatsoever, but

suffce it to note that the defendants terminated the agreement

vide their letter 10/12/2015, by alleging breach of the terms

and conditions at the instance of the plaintiff, during the

lockdown period.

The aforesaid events resulted in the

plaintiff instituting the suit, seeking a declaration that the

defendants had jointly breached the terms and conditions of

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the agreement dated 20/05/2014, m