{"id":51060,"date":"2009-03-16T00:00:00","date_gmt":"2009-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/companies-act-vs-global-earth-properties-on-16-march-2009"},"modified":"2017-01-09T19:29:52","modified_gmt":"2017-01-09T13:59:52","slug":"companies-act-vs-global-earth-properties-on-16-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/companies-act-vs-global-earth-properties-on-16-march-2009","title":{"rendered":"Companies Act vs Global Earth Properties & on 16 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Companies Act vs Global Earth Properties & on 16 March, 2009<\/div>\n
Bench: S.B. Mhase, Prasanna B. Varale<\/div>\n
                             -: 1 :-\n\n\n\n\n                                                               \n            HIGH COURT OF JUDICATURE AT BOMBAY\n           ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                       \n                  APPEAL No. 139 OF 2008\n                            IN\n             NOTICE OF MOTION No. 3062 OF 2007\n                            IN\n\n\n\n\n                                      \n                  SUIT No. 2316 OF 2007.\n\n     Loreal India Private Limited,      ]\n     A company incorporated under the]\n\n\n\n\n                           \n     Companies Act, 1956 having      ]\n                 \n     its registered office at\n     2nd floor, Peninsula Tower,\n                                     ]\n                                     ]\n     Ganpatrao Kadam Marg,           ]\n                \n     Lower Parel,Mumbai - 400 013.   ]        ..Appellant.\n\n           V E R S U S\n      \n\n\n     1. Global Earth Properties &    ]\n   \n\n\n\n     Developers Pvt. Ltd., (Formerly ]\n     known as Global Insurance       ]\n     Products Marketing Ltd.)        ]\n     a company incorporated under the]\n\n\n\n\n\n     provisions of the Companies Act,]\n     1956 and having its Corporate   ]\n     Office at 102, Arihant Building,]\n     15th Road, Khar (West),         ]\n\n\n\n\n\n     Mumbai - 400052.                ]\n                                     ]\n     2. Piramal Holdings Ltd.,also   ]\n     a Company having its registered ]\n     office at Corporate Crossroads, ]\n     28, Pt. M.M. Malviya Road,      ]\n     Haji Ali, Mumbai 400 034        ]\n     and also having its office at   ]\n     106, Peninsula Centre,          ]\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 14:24:55 :::\n                              -: 2 :-\n\n\n\n\n                                                               \n     Dr. S. S. Rao Road, Parel           ]\n     Mumbai - 400 012.                   ]     ..Respondents.\n\n\n\n\n                                       \n                        ALONG WITH\n                  APPEAL No. 182 OF 2008\n                            IN\n\n\n\n\n                                      \n             NOTICE OF MOTION No. 3062 OF 2007\n                            IN\n                  SUIT No. 2316 OF 2007.\n\n\n\n\n                           \n     Global Earth Properties &           ]\n                 \n     Developers Pvt. Ltd., (Formerly\n     known as Global Insurance\n                                         ]\n                                         ]\n     Products Marketing Ltd.)            ]\n                \n     a company incorporated under the    ]\n     provisions of the Companies Act,    ]\n     1956 and having its Corporate       ]\n     Office at 102, Arihant Building,    ]\n      \n\n\n     15th Road, Khar (West),             ]\n   \n\n\n\n     Mumbai - 400052.                    ]     ..Appellant.\n\n          V E R S U S.\n\n\n\n\n\n     1. Loreal India Private Limited,]\n     A company incorporated under the]\n     Companies Act, 1956 having      ]\n     its registered office at        ]\n\n\n\n\n\n     2nd floor, Peninsula Tower,     ]\n     Ganpatrao Kadam Marg,           ]\n     Lower Parel,Mumbai - 400 013.    ]\n     2. Piramal Holdings Ltd.,also    ]\n     a Company having its registered ]\n     office at Corporate Crossroads, ]\n     28, Pt. M.M. Malviya Road,       ]\n     Haji Ali, Mumbai 400 034         ]\n     and also having its office at    ]\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 14:24:55 :::\n                                    -: 3 :-\n\n\n\n\n                                                                     \n     106, Peninsula Centre,                    ]\n     Dr. S. S. Rao Road, Parel                 ]\n     Mumbai - 400 012.                         ]     ..Respondents.\n\n\n\n\n                                             \n                                    -----\n     Mr. Pravin Samdani, Sr. Advocate a\/w Ms. Soumya Shrikrishna\n\n\n\n\n                                            \n     a\/w Darshan Mehta i\/b M\/s. Dhruve Liladhar & Co., for the\n     appellants in Appeal No. 139 of 2008 and Respondents in Appeal\n\n\n\n\n                                 \n     No. 182 of 2008.\n\n\n     Mr.\n                    \n           Darius Khambhatta, Sr. Advocate a\/w Chetan Kapadia,\n     Parimal Shroff, Subodh Joshi, Sanjay Kotak and Radhika\n                   \n     Kalpatrai i\/b M\/s. P. K. Shroff & Co., for the appellants in Appeal\n     No. 182 of 2008 and Respondents in Appeal No. 139 of 2008.\n                                    ------\n      \n   \n\n\n\n                                   Coram: S. B. MHASE &\n                                         PRASANNA B. VARALE, JJ.\n<\/pre>\n
     Date of reserving judgment : 8th August 2008.\n<\/p>\n
     Date of pronouncement of judgment : 16th March, 2009<\/p>\n
     ORAL JUDGMENT (Per S. B. Mhase, J.)<\/p>\n
     1.        Both these appeals are directed against the<\/p>\n
     judgment and order passed by the learned Single Judge of<\/p>\n
     this Court on 17th January 2008 in Notice of Motion No. 3062<\/p>\n
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     of 2007 in Suit No. 2316 of 2007. Against the said order<\/p>\n
     original Plaintiff has filed Appeal No. 139 of 2008 wherein<\/p>\n
     the Respondents are original Defendant nos. 2 & 3<\/p>\n
     respectively.   Appeal No.182 of 2008 has been filed by<\/p>\n
     original Defendant no.1 wherein the Respondents are<\/p>\n
     original Plaintiff and original Defendant no.2. It is clarified<\/p>\n
     that original Defendant no.2 has not filed any appeal and in<\/p>\n
     both the appeals original Defendant no.2 is the Respondent<\/p>\n
     No. 2. For the sake of convenience and in order to avoid<\/p>\n
     ambiguity and confusion, the Appellant in Appeal No. 139 of<\/p>\n
     2008 and the Respondent No. 1 in Appeal no. 182 of 2008<\/p>\n
     has been referred to as “the Plaintiff”, while the Appellant in<\/p>\n
     Appeal No. 182 of 2008 and the Respondent No. 1 in<\/p>\n
     Appeal No. 139 of 2008 has been referred to as “the<\/p>\n
     Defendant No. 1”. So also the Respondent No. 2 in both the<\/p>\n
     appeals has been referred to as “the Defendant No. 2”.\n<\/p>\n
     2.       Suit No. 2316 of 2007 has been filed by the Plaintiff<\/p>\n
     in the High Court seeking specific performance of the<\/p>\n
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     agreements at Exhibits -“A” to “D” to the plaint, and prayed<\/p>\n
     that a decree be passed against the Defendants or such of<\/p>\n
     them as may be determined by the High Court to sign and<\/p>\n
     execute all such deeds and documents and writings for<\/p>\n
     effectively renewing the leave and licence agreement upto<\/p>\n
     30th November 2012 in terms of Exhibits “A” to “D” and in<\/p>\n
     particularly, Exhibit-“D”, interalia by, but not limited to signing<\/p>\n
     requisite   leave   and    licence      agreement         in     terms        of<\/p>\n
     Addendum [Exhibit-“D” hereto] upto the period of 30th<\/p>\n
     November 2012 and not interfering with the Plaintiff’s<\/p>\n
     possession in respect of the said premises upto 30th<\/p>\n
     November 2012. In the alternative, the Plaintiff has prayed<\/p>\n
     that the defendants and\/or such of them as may be<\/p>\n
     determined by this Court be ordered and declared to pay to<\/p>\n
     the Plaintiff a sum of Rs. 66,13,87,400\/- together with<\/p>\n
     interest thereon at the rate of 18% per annum from the date<\/p>\n
     of the filing of the suit till payment and\/or realization. The<\/p>\n
     Plaintiff then has made interim prayer restraining the<\/p>\n
     defendants from interfering and obstructing the Plaintiff’s<\/p>\n
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     possession and also prayed for stay of                 the proceeding<\/p>\n
     pending in the Small Causes Court bearing Suit No. 133\/150<\/p>\n
     of 2007 filed by the Defendant No. 1.\n<\/p>\n
     3.          On filing the said suit, the Plaintiff has moved<\/p>\n
     notice of motion no. 3062 of 2007 thereby making interim<\/p>\n
     prayers pending suit No. 2316 of 2007.                    They are as<\/p>\n
     follows :\n<\/p>\n
                    “(a)        that pending the hearing and final<\/p>\n
                    disposal of the Suit, the defendants by themselves,<\/p>\n
                    their servants and agents be restrained by an order<\/p>\n
                    and injunction of this Hon’ble Court from in any<\/p>\n
                    manner interfering with, obstructing or disturbing<\/p>\n
                    the Plaintiff’s possession in respect of the said<\/p>\n
                    Premises;\n<\/p>\n
                    (b)         that pending the hearing and final<\/p>\n
                    disposal of the Suit, this Hon’ble Court may be<\/p>\n
                    pleased to stay the proceedings in the Hon’ble<\/p>\n
                    Court of Small Causes bearing Suit No. 133\/150 of<\/p>\n
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                  2007 and the Defendant no.1 be restrained by this<\/p>\n
                  Hon’ble Court from in any manner proceeding<\/p>\n
                  further with the said Suit No. 133\/150 of 2007;”\n<\/p>\n
     4.       It appears that initially having found that the<\/p>\n
     Defendant Nos. 1 & 2 are absent in spite of service of<\/p>\n
     notice, the learned Single Judge has passed ad-interim<\/p>\n
     orders. [Though there is a dispute raised by the Defendants<\/p>\n
     that the service was not effected and the ad-interim orders<\/p>\n
     were obtained without service.]<\/p>\n
     5.       The above referred notice of motion was decided<\/p>\n
     by the learned Single Judge after hearing both sides on 17th<\/p>\n
     January 2008. Though the learned Single Judge has found<\/p>\n
     that the documents annexed to the plaint, viz., Exhibits – “A”\n<\/p>\n
     to “D”, may have been executed between the parties, the<\/p>\n
     same is not enforceable at law since the compensation is a<\/p>\n
     remedy available to the Plaintiff. Thus, the learned Single<\/p>\n
     Judge has observed that the contract of leave and licence<\/p>\n
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     between the Plaintiff and the Defendant for a period of 33<\/p>\n
     months is irrevocable unless a breach of any of the<\/p>\n
     conditions of the said contract has been committed, but the<\/p>\n
     further relief of specific performance, especially extension,<\/p>\n
     prima facie, cannot be granted because compensation is the<\/p>\n
     appropriate remedy.    The learned Single Judge has also<\/p>\n
     observed that the claim of extension\/renewal is based upon<\/p>\n
     the document at Exhibit- “D”, namely, the Addendum. The<\/p>\n
     period of licence as per the agreement of leave and licence<\/p>\n
     has come to an end and the learned Single Judge observed<\/p>\n
     that the suit filed by the Defendant No. 1 in the Small<\/p>\n
     Causes Court, Mumbai bearing No. 133\/150\/2007 is not<\/p>\n
     based on breach of conditions of the terms of agreement of<\/p>\n
     leave and licence, but it is based on the ground that the<\/p>\n
     period as stated in the said agreement of leave and licence<\/p>\n
     has been consumed by the Plaintiff, and the said agreement<\/p>\n
     of leave and licence has come to an end by efflux of time<\/p>\n
     and thereby beyond a period of 33 months as stated in the<\/p>\n
     leave and licence agreement, the Plaintiff is not entitled to<\/p>\n
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     stay in and enjoy the said premises.           Thus, the learned<\/p>\n
     Single Judge observed that the suit in the Small Causes<\/p>\n
     Court, Mumbai is different than the suit in the High Court,<\/p>\n
     and thereby having found that the compensation is an<\/p>\n
     appropriate remedy available to the Plaintiff and that the suit<\/p>\n
     in the Small Causes Court, Mumbai is distinct and is based<\/p>\n
     on different cause of action from the cause of action in suit<\/p>\n
     no. 2362 of 2007 pending in this Court, the learned Single<\/p>\n
     Judge has refused to grant the reliefs as prayed in Notice of<\/p>\n
     motion No. 3062 of 2007.\n<\/p>\n
     6.       Thus, in short Notice of Motion was rejected.\n<\/p>\n
     However, while rejecting the said Notice of Motion the<\/p>\n
     learned Single Judge has observed in paragraph no. 22 that<\/p>\n
     needless to observe that till such time, the plaintiffs will be<\/p>\n
     entitled to enjoy all the facilities and amenities associated<\/p>\n
     with the suit premises which they were otherwise enjoying<\/p>\n
     under the Leave and License agreement as if the same was<\/p>\n
     in force. Indeed, the plaintiffs can do so on discharging their<\/p>\n
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     obligations under the same agreement till the decree of<\/p>\n
     eviction is passed.    This observation however, is not an<\/p>\n
     expression of opinion on the claim of the Defendant No. 1<\/p>\n
     for mesne profits if any, against the plaintiffs. While passing<\/p>\n
     the final order the learned Single Judge in paragraph no. 33<\/p>\n
     observed and clarified that, however, it is clarified that the<\/p>\n
     Defendant no.1 shall not take forcible possession of the suit<\/p>\n
     premises, but will be free to pursue its legal remedy pending<\/p>\n
     before the Small Causes Court for eviction and possession<\/p>\n
     of the suit premises against the plaintiffs. In other words,<\/p>\n
     the Defendant no.1 will be free to evict the plaintiffs by<\/p>\n
     following due process of law. Till that time, the plaintiffs will<\/p>\n
     be entitled to enjoy the suit premises and all facilities and<\/p>\n
     amenities associated thereto in the same way as provided in<\/p>\n
     the Leave and License agreement, on discharging its<\/p>\n
     obligations provided under that agreement.\n<\/p>\n
     7.       Thus, while rejecting the Notice of Motion the<\/p>\n
     learned Single Judge has allowed the Plaintiff to enjoy the<\/p>\n
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     suit premises and all facilities and amenities associated<\/p>\n
     thereto as provided in the leave and licence agreement on<\/p>\n
     discharging   its   obligations   provided        under        the      said<\/p>\n
     agreement. Thus, the Plaintiff is aggrieved by the rejection<\/p>\n
     of the Notice of Motion, and therefore the Plaintiff has<\/p>\n
     preferred Appeal No. 139 of 2008. So far as the Defendant<\/p>\n
     No. 1 is concerned, the Defendant No. 1 is aggrieved by an<\/p>\n
     observation quoted above from paragraph no. 22 and the<\/p>\n
     direction that till the Defendant No. 1 evicts the Plaintiff by<\/p>\n
     following the due process of law, the Plaintiff will be entitled<\/p>\n
     to enjoy the suit premises, facilities and amenities<\/p>\n
     associated thereto, in the same way as provided in the leave<\/p>\n
     and licence agreement on discharging the obligations<\/p>\n
     provided under the said agreement, and thereby has<\/p>\n
     preferred Appeal No. 182 of 2008. Both these appeals are<\/p>\n
     heard together for final disposal at the stage admission<\/p>\n
     since they were arising from the interim application.\n<\/p>\n
     8.       Defendant No. 2 is a Developer of building known<\/p>\n
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     as “Peninsula Tower-I” and were the owner of Unit Nos. 201,<\/p>\n
     202, 203, 204 on second floor in Peninsula Tower-I along<\/p>\n
     with 27 car parking spaces situated at Peninsula Corporate<\/p>\n
     Park, Ganapatrao Kadam Marg, off. Senapati Bapat Marg,<\/p>\n
     Lower Parel, Mumbai – 400 013. [Hereinafter collectively<\/p>\n
     referred to as “the suit premises.”] In respect of the suit<\/p>\n
     premises on 18th November 2003 the Plaintiff and the<\/p>\n
     Defendant No. 2 executed a Letter-of-Intent regarding the<\/p>\n
     intention of the Defendant No. 2 to grant a licence to the<\/p>\n
     Plaintiff. Thereafter on 21st June 2004, the Plaintiff and the<\/p>\n
     Defendant No. 2 executed four documents, namely, (i) the<\/p>\n
     leave and licence agreement (ii) Amenities agreement, (iii)<\/p>\n
     Security deposit agreement, and (iv) a Side Letter containing<\/p>\n
     the provisions for renewal. These four documents are at<\/p>\n
     Exhibits “A” to “D” to the plaint. By the agreement of leave<\/p>\n
     and licence, the Defendant No. 2 granted to the Plaintiff<\/p>\n
     licence to use and occupy the suit premises for a period of<\/p>\n
     33 months at a consideration and on the terms agreed upon<\/p>\n
     and recorded in the said leave and licence agreement. As<\/p>\n
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     per the Amenities agreement, the Defendant No. 2 provided<\/p>\n
     the amenities as stated in the said agreement in exchange<\/p>\n
     of consideration recorded therein. Under the agreement for<\/p>\n
     Security Deposit, the Plaintiff deposited with the Defendant<\/p>\n
     No. 2 the sum of Rs. 2,12,69,016\/- as security deposit. Both<\/p>\n
     these agreements,          namely, amenities agreement and<\/p>\n
     security deposit agreement, were co-terminus with the leave<\/p>\n
     and licence agreement.\n<\/p>\n
     9.           Case of the Plaintiff, in short, is that the leave and<\/p>\n
     licence agreement is irrevocable licence and as per the<\/p>\n
     clauses in Addendum or Side-letter, which is at Exhibit -“D”,<\/p>\n
     Defendant No. 2 has agreed to renew the said leave and<\/p>\n
     licence agreement for further three terms – the first of which<\/p>\n
     was for 15 months and was expressed to be automatic (with<\/p>\n
     lock-in period) and the remaining two further renewals of 18<\/p>\n
     months and 33 months respectively were the options given<\/p>\n
     to the Plaintiff which options were to be exercised by the<\/p>\n
     Plaintiff.\n<\/p>\n
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     10.       It appears that there was a Letter-of-intent between<\/p>\n
     the Defendant Nos. 1 & 2 executed on 29th January 2004<\/p>\n
     recording the intention of the Defendant no.2 to sell the suit<\/p>\n
     premises to the Defendant No. 1. The Defendant No. 1 was<\/p>\n
     made aware of the commitments with regard to the licence<\/p>\n
     period in the Letter-of-Intent dated 18th November 2003<\/p>\n
     between the Plaintiff and the Defendant No. 2. It is alleged<\/p>\n
     that the Defendant No. 1 had agreed to be bound as per the<\/p>\n
     terms and conditions of the said Letter-of-Intent dated 18th<\/p>\n
     November 2003. It is further alleged that after the execution<\/p>\n
     of four documents referred to above between the Plaintiff<\/p>\n
     and the Defendant No. 2, by sale-deed dated 30th November<\/p>\n
     2004, the Defendant No. 2 sold and transferred the suit<\/p>\n
     premises to the Defendant No. 1 subject to the rights and<\/p>\n
     entitlement of the Plaintiff in terms of the aforesaid<\/p>\n
     agreements (being Exhibits – “A” to “D” to the plaint.). The<\/p>\n
     Defendant No. 1 only accepts the document at Exhibits – “A”\n<\/p>\n
     to “C”.   However the document at Exhibit -“D” to the plaint,<\/p>\n
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     namely, the Side-letter or Addendum is disputed by the<\/p>\n
     Defendant No. 1. It further appears that by correspondence<\/p>\n
     dated 2nd December 2004 there was an attornment of the<\/p>\n
     leave and licence agreement and the plaintiff was directed to<\/p>\n
     deposit the licence charges with HDFC Bank in the Escrow<\/p>\n
     Account. However, the dispute started between the parties<\/p>\n
     round about the time when the period stated in the leave<\/p>\n
     and licence agreement dated 21st June 2004, namely after<\/p>\n
     33 months was likely to expire. The said period was to<\/p>\n
     expire on 31st May 2007 and therefore by a letter dated 9th<\/p>\n
     April 2007 the defendant no.1 directed that the leave and<\/p>\n
     licence agreement shall expire by 31st May 2007, and<\/p>\n
     therefore by 1st June 2007 the Plaintiff shall remove<\/p>\n
     themselves from the suit premises. By letter dated 19th April<\/p>\n
     2007 the Plaintiff forwarded a copy of the Addendum dated<\/p>\n
     21st June 2004 and three drafts of the leave and licence<\/p>\n
     agreement, the amenities agreement and the agreement for<\/p>\n
     security deposit and requested to execute them so that the<\/p>\n
     Plaintiff can remain into possession and enjoyment of the<\/p>\n
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     said property till 2012.   There was exchange of letters<\/p>\n
     between the parties. However, ultimately the Defendant No.<\/p>\n
     1 filed suit No. LE-133\/150\/2007 before the Small Causes<\/p>\n
     Court, Mumbai on 4th July 2007 claiming that the period of<\/p>\n
     the leave and licence agreement for 33 months, as agreed<\/p>\n
     between the Plaintiff and the Defendant No. 2, is over, and<\/p>\n
     therefore the Plaintiff shall hand over the possession of the<\/p>\n
     suit premises to the Defendant no.1            Thereafter on 16th<\/p>\n
     August 2007 the Plaintiff filed suit No. 2316 of 2007 in the<\/p>\n
     High Court seeking specific performance of the leave and<\/p>\n
     licence agreement, amenities agreement, agreement for<\/p>\n
     security deposit and the Addendum, all dated 21st June<\/p>\n
     2004, in respect of the suit premises. On 17th August 2007,<\/p>\n
     Notice of Motion No. 3062 of 2007 for interim reliefs was<\/p>\n
     moved. It was heard and decided by the learned Single<\/p>\n
     Judge on 17th January 2008 as stated and referred to above<\/p>\n
     and thereby the Notice of Motion was rejected and while<\/p>\n
     rejecting the said Notice of Motion certain observations were<\/p>\n
     made and certain directions were given to the Defendant<\/p>\n
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     No. 1, and therefore the original Plaintiff and the Defendant<\/p>\n
     No. 2 respectively, as stated above, have filed the present<\/p>\n
     appeals.\n<\/p>\n
     11.        So far as the execution and existence of the<\/p>\n
     agreement to leave and licence, the amenities agreement<\/p>\n
     and the agreement in respect of the Security deposit is<\/p>\n
     concerned, there is no dispute between the Plaintiff and the<\/p>\n
     Defendant No. 1. The Defendant No. 1 respects these three<\/p>\n
     agreements. The claim of the Defendant No. 1 is that the<\/p>\n
     Letter-of-Intent dated 18th November 2003 has been<\/p>\n
     ultimately relegated, after negotiations, to document of<\/p>\n
     agreement of licence, amenities agreement and the Security<\/p>\n
     Deposit Agreement, and therefore,         it is the case of the<\/p>\n
     Defendant No. 1 that though the Letter-of-Intent dated 18th<\/p>\n
     November 2003 provided that the licence period was 66<\/p>\n
     months with initial 48 months commencing from the date of<\/p>\n
     possession being lock-in period, is ultimately the leave and<\/p>\n
     licence agreement which was executed between the Plaintiff<\/p>\n
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     and the Defendant No. 2 on 21st June 2006 was for a period<\/p>\n
     of 33 months, and therefore the period of the leave and<\/p>\n
     licence agreement between the Plaintiff and the Defendant<\/p>\n
     No. 2 was only for 33 months.         It is further case of the<\/p>\n
     Defendant No. 1 that the Side-Letter or the Addendum which<\/p>\n
     provides for automatic extension for a period of 15 months<\/p>\n
     and further two renewals of 18 months and 33 months was<\/p>\n
     never disclosed by the Defendant No. 2 and\/or by the<\/p>\n
     Plaintiff to the Defendant No. 1 and therefore the said Side<\/p>\n
     Letter is not binding on the Defendant No. 1. Thereby, the<\/p>\n
     simple case of the Defendant No. 1 is that the plaintiff was<\/p>\n
     entitled to remain in possession and enjoyment of the suit<\/p>\n
     premises on the basis of leave and licence agreement for 33<\/p>\n
     months coupled with the Amenities agreement and Security<\/p>\n
     Deposit Agreement and on the expiry of the said period of<\/p>\n
     33 months, the Plaintiff shall vacate the suit premises and<\/p>\n
     that the Addendum letter dated 21st June 2004 issued by the<\/p>\n
     Defendant No. 2 to Plaintiff is not binding upon the<\/p>\n
     Defendant No. 1, and therefore simplicitor on the basis of<\/p>\n
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     expiry of the period of 33 months, as provided in the leave<\/p>\n
     and licence agreement dated 21st June 2004, by efflux of<\/p>\n
     time the Defendant No. 1 has filed a suit in the Small<\/p>\n
     Causes Court, Mumbai bearing No. LE-133\/150\/2007. At<\/p>\n
     the initial stage what we find is that, that the said suit is not<\/p>\n
     based on breach of conditions of the leave and licence<\/p>\n
     agreement dated 21st June 2004 thereby entitling the<\/p>\n
     Defendant No. 1 to get possession of the suit premises on<\/p>\n
     termination of the leave and licence agreement. The period<\/p>\n
     of 33 months is over as per the Defendant No. 1, and<\/p>\n
     therefore the Defendant No. 1 is claiming possession of the<\/p>\n
     suit premises. In short, the suit is based on efflux of time of<\/p>\n
     the leave and licence agreement and thereby the entitlement<\/p>\n
     of the Defendant No. 1 for possession of the suit premises.\n<\/p>\n
     As against this, the Plaintiff’s suit is for specific performance<\/p>\n
     of the agreements annexed to the plaint as Exhibits “A” to<\/p>\n
     “D”, more specifically of the performance of an agreement<\/p>\n
     called Addendum which provides for an automatic renewal<\/p>\n
     for a period of 15 months and thereafter the renewal of the<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                     -: 20 :-<\/span><\/p>\n
     leave and licence agreement for 18 months and 33 months<\/p>\n
     at the option of the Plaintiff. In any circumstance, for the<\/p>\n
     extended period, fresh agreement of the leave and licence<\/p>\n
     coupled with the amenities and security deposit agreement<\/p>\n
     is necessary for being valid and legal possession, and<\/p>\n
     therefore on 19th April 2007, the Plaintiff has forwarded the<\/p>\n
     documents for further renewals as provided in the<\/p>\n
     Addendum dated 21st June 2004. However, the same was<\/p>\n
     not signed by the Defendant No. 1 and instead the<\/p>\n
     Defendant No. 1 proceeded in the Small Causes Court,<\/p>\n
     Mumbai for getting the possession of suit premises. In the<\/p>\n
     suit which is filed by the Plaintiff, therefore, the question is<\/p>\n
     whether to direct the Defendant No. 1, its servants and<\/p>\n
     agents to execute the documents extending the renewal of<\/p>\n
     the leave and licence agreement initially for a period of 15<\/p>\n
     months and thereafter for a period of 18 months and 33<\/p>\n
     months as per the letter addressed on 19th April 2007.\n<\/p>\n
     Thereby on plain reading of the relief and the case of the<\/p>\n
     Plaintiff it is crystal clear that the relief claimed in the suit for<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 21 :-<\/span><\/p>\n
     specific performance filed in the High Court is quite a distinct<\/p>\n
     relief which has nothing to do with the relief claimed in the<\/p>\n
     suit filed in the Small Causes Court, Mumbai. That means<\/p>\n
     even if the decree is passed in the suit filed in the Small<\/p>\n
     Causes Court, Mumbai on efflux of time of the leave and<\/p>\n
     licence agreement dated 21st June 2004, and that if the<\/p>\n
     decree is passed in a suit for specific performance the said<\/p>\n
     decree cannot be enforced, since the Plaintiff will be entitled<\/p>\n
     to get renewal of the leave and licence agreement and<\/p>\n
     amenities agreement and security deposit agreement by<\/p>\n
     way of specific performance. If the suit is dismissed the said<\/p>\n
     decree can very well be executed and therefore what we<\/p>\n
     find is that, that the learned Single Judge was right after<\/p>\n
     considering the submissions on both sides to hold that the<\/p>\n
     suit in the Small Causes Court, Mumbai can proceed<\/p>\n
     independently and that it is not necessary to stay the said<\/p>\n
     suit pending for specific performance of the agreement.\n<\/p>\n
     One thing is very much clear that even if the suit for specific<\/p>\n
     performance is dismissed, yet in order to get possession of<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 22 :-<\/span><\/p>\n
     the property the Defendant No. 1 will have to approach to<\/p>\n
     the Small Causes Court, and the dismissal of the suit itself<\/p>\n
     will not entitle the Defendant No.1 to directly enter into<\/p>\n
     possession of the suit premises, and therefore on proper<\/p>\n
     analysis we find that the suit in the Small Causes Court,<\/p>\n
     Mumbai filed by the Defendant No. 1 can independently<\/p>\n
     proceed and it is not necessary for this Court either to stay<\/p>\n
     the suit in the Small Causes Court or transfer that suit to<\/p>\n
     this Court invoking the powers under Section 24 of the Code<\/p>\n
     of Civil Procedure, 1908. We are aware that the suit from<\/p>\n
     the Small Causes Court can be transferred to this Court and<\/p>\n
     this Court can dispose it of as the Small Causes Court, but<\/p>\n
     as a result of that the remedies available against the said<\/p>\n
     judgment will be prejudiced. Because this Court being the<\/p>\n
     highest Court, once deals with the matter, the further<\/p>\n
     remedies available against the judgment and order of the<\/p>\n
     Small Causes Court will not be available to the parties.\n<\/p>\n
     12.      Apart from that, since we find that it has a distinct<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 23 :-<\/span><\/p>\n
     cause of action, which has nothing to do with the cause of<\/p>\n
     action in the suit for specific performance of the agreement,<\/p>\n
     we find that the decision taken by the learned Single Judge<\/p>\n
     allowing the Defendant No. 1 to prosecute the suit in the<\/p>\n
     Small Causes Court independently, was justified and<\/p>\n
     thereby the decision rejecting the prayer clause (b) of the<\/p>\n
     Notice of Motion is just and valid and we approve the same.\n<\/p>\n
     13.      Then we have to consider the legality of the<\/p>\n
     judgment and order of the learned Single Judge insofar as<\/p>\n
     rejecting the prayer clause (a) in the Notice of Motion is<\/p>\n
     concerned, wherein the learned Single Judge has observed<\/p>\n
     that since the compensation is appropriate remedy available<\/p>\n
     to the Plaintiff, specific performance of the agreement<\/p>\n
     cannot be granted.     Prayer clause (a) of the Notice of<\/p>\n
     Motion, namely, the injunction or prohibition as against the<\/p>\n
     Defendant No. 1 to the extent that the Defendant No. 1 shall<\/p>\n
     not obstruct the peaceful possession of the Plaintiff in the<\/p>\n
     suit premises, is concerned, this requires satisfaction of<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 24 :-<\/span><\/p>\n
     three important ingredients under Order-39 of the Code of<\/p>\n
     Civil Procedure, 1908, namely, that the Plaintiff should make<\/p>\n
     out a prima facie case in his favour; secondly, the loss which<\/p>\n
     the Plaintiff will suffer as a result of the non grant of the<\/p>\n
     interim relief will be an irreparable loss; and thirdly the<\/p>\n
     balance of convenience lies in favour of the Plaintiff and we<\/p>\n
     will have to scrutinize the case of the plaintiff on the above<\/p>\n
     referred three touchstones for granting temporary injunction.\n<\/p>\n
     14.      No doubt, that the Plaintiff has been inducted in the<\/p>\n
     suit premises as a result of the agreement of leave and<\/p>\n
     licence coupled with the amenities agreement and the<\/p>\n
     security deposit agreement, all dated 21st June 2004.\n<\/p>\n
     Therefore the entry of the Plaintiff in the suit premises is<\/p>\n
     lawful entry. It is also a fact established on record that the<\/p>\n
     period of 33 months, as contemplated under the leave and<\/p>\n
     licence agreement dated 21st June 2004 has come to an<\/p>\n
     end by 31st May 2007, and 30 days prior to that date there<\/p>\n
     should have been a renewal or extension of the leave and<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                   -: 25 :-<\/span><\/p>\n
     licence agreement period. As per the case of the Plaintiff<\/p>\n
     the same has not taken place, and therefore the Plaintiff has<\/p>\n
     approached to this Court for specific performance of those<\/p>\n
     agreements and thereby he is claiming a decree of renewal<\/p>\n
     of the leave and licence agreement period as stated in the<\/p>\n
     agreement of Addendum.         So on plain analysis of facts,<\/p>\n
     undisputedly the Plaintiff is entitled to remain in possession<\/p>\n
     of the suit premised till 31st May 2007, and accordingly he<\/p>\n
     has remained.       The question which requires to be<\/p>\n
     scrutinized is – what is the nature of the possession of the<\/p>\n
     Plaintiff in the suit premises after 31st May 2007, i.e., during<\/p>\n
     the pendency of the suit for specific performance of the<\/p>\n
     agreement. For this purpose it will be better to refer to the<\/p>\n
     terms and conditions of the leave and licence agreement<\/p>\n
     dated 21st June 2004. The following terms are relevant.\n<\/p>\n
                        “2(a).    The term of the License shall be<\/p>\n
              for a period of 33 (thirty three) months (the License<\/p>\n
              period) commencing from the Effective date (as<\/p>\n
              defined hereunder). Neither party shall be entitled<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                           -: 26 :-<\/span><\/p>\n
      to terminate this Agreement and\/or the License<\/p>\n
      hereby granted during the period of 33 (thirty three)<\/p>\n
      months, except as specifically provided herein.\n<\/p>\n
                 2(c).    On         the     expiry          or      earlier<\/p>\n
      determination of this License (in terms hereof), the<\/p>\n
      Licensee shall without recourse to the Court of Law<\/p>\n
      remove itself, its servants and agents and their<\/p>\n
      belongings from the said Licensed Premises and<\/p>\n
      hand over the same to the Licensor in good<\/p>\n
      condition, wear and tear excepted, provided that the<\/p>\n
      Licensor    simultaneously           refunds      the       Security<\/p>\n
      deposit to the Licensee as provided hereinafter.\n<\/p>\n
                 6(h).    On          expiry            or          sooner<\/p>\n
      determination of this Agreement, remove itself<\/p>\n
      alongwith its staff, employees and belongings and<\/p>\n
      handover the said Licensed premises to the<\/p>\n
      Licensor in good condition, save and except<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                           -: 27 :-<\/span><\/p>\n
      reasonable wear and tear caused by the removal of<\/p>\n
      the furniture, fittings and fixtures.           The Licensee<\/p>\n
      may at its own discretion not dismental the fixtures<\/p>\n
      got fixed by it, viz., floor tiles, plastering, electrical<\/p>\n
      wiring\/fittings, plumbing, drainage, ducting etc..<\/p>\n
                18.       Except as otherwise provided in<\/p>\n
      this Agreement        and subject to the Licensor<\/p>\n
      complying with all its obligations towards the<\/p>\n
      Licensee as contained in these presents on the<\/p>\n
      expiry or sooner determination of this Agreement<\/p>\n
      the Licensee      shall   leave      the      said      Licensed<\/p>\n
      Premises by removing itself, its Affiliates \/ Group<\/p>\n
      companies, its officers, employees and servants as<\/p>\n
      also all its or their belongings chattles articles or<\/p>\n
      things from the said Licensed Premises and hand<\/p>\n
      over vacant and peaceful possession thereof and<\/p>\n
      on such expiry or termination the Licensee and\/or<\/p>\n
      other   persons     occupying       the      said       Licensed<\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                              -: 28 :-<\/span><\/p>\n
      Premises shall be trespasser thereon and the<\/p>\n
      Licensor, its Affiliates\/ Group companies and\/or its<\/p>\n
      servants and agents or any other person or persons<\/p>\n
      authorised by the Licensor in that behalf shall be<\/p>\n
      entitled to prevent the Licensee, its employees,<\/p>\n
      servants and agents from entering into the said<\/p>\n
      Licensed premises or any part thereof and it is<\/p>\n
      hereby expressly agreed and understood that if<\/p>\n
      after the expiry or sooner determination of the<\/p>\n
      license hereby granted the Licensor is unable for<\/p>\n
      any reason whatsoever to remove the Licensee its<\/p>\n
      Affiliates   \/   Group     companies           or its officers,<\/p>\n
      employees        and   servants       occupying           the      said<\/p>\n
      Licensed Premises or if any time is given by the<\/p>\n
      Licensor to the Licensee for vacating the said<\/p>\n
      Licensed premises the same shall not be deemed<\/p>\n
      or taken to be any concession given by the Licensor<\/p>\n
      to the Licensee nor shall it amount to renewal of<\/p>\n
      this Agreement for a further period and the<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 29 :-<\/span><\/p>\n
             Licensee shall nevertheless be deemed to continue<\/p>\n
             to use or occupy the said Licensed Premises<\/p>\n
             unauthorisedly     after       the     expiry        or       sooner<\/p>\n
             determination of this Agreement as aforesaid and<\/p>\n
             the Licensee shall so long as it fails to vacate the<\/p>\n
             said Licensed Premises be liable to pay to the<\/p>\n
             Licensor a sum of Rs.1,18,160\/- per day as and by<\/p>\n
             way of agreed amount of liquidated quantified<\/p>\n
             damages      for    continuing          to       illegally         and<\/p>\n
             unauthorisedly     occupying         the       said       Licensed<\/p>\n
             premises.”\n<\/p>\n
     15.      Thus, on going through the leave and licence<\/p>\n
     agreement dated 21st June 2004, what is noticed is that,<\/p>\n
     that the said leave and licence agreement was to remain<\/p>\n
     operative for a period of 33 months. It can be terminated as<\/p>\n
     provided in clause 17. But we have not mentioned clause-\n<\/p>\n
     17 because there is nobody’s case that the leave and<\/p>\n
     licence agreement was terminated under clause-17.                          The<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 30 :-<\/span><\/p>\n
     case is that the licence period is over and what is the nature<\/p>\n
     of the possession of the licensee under the said agreement.\n<\/p>\n
     On reading the above referred clauses, namely, clauses 2<\/p>\n
     (c) 6(h) and 18, it will be clear that on expiry of the licence<\/p>\n
     period, the Plaintiff is under obligation to remove itself from<\/p>\n
     the suit premises along with its affiliates\/group companies,<\/p>\n
     its officers and employees and servants and also their<\/p>\n
     belongings and hand over the vacant and peaceful<\/p>\n
     possession thereof. What is important to be noted is that,<\/p>\n
     that the occupation of the suit premises by the Plaintiff after<\/p>\n
     the expiry of the licence period is that of the trespasser and<\/p>\n
     the Plaintiff is under obligation to pay Rs.1,18,160\/- per day<\/p>\n
     by way of agreed amount of liquidated damages for<\/p>\n
     continuing illegally and unauthorisedly occupying the suit<\/p>\n
     premises.   Therefore, the nature of Plaintiff’s possession<\/p>\n
     after the expiry of the period of leave and licence is that of<\/p>\n
     the trespasser and\/or unauthorized occupation for which the<\/p>\n
     liquidated damages as stated in clause-18, the Plaintiff is<\/p>\n
     liable to pay and the Defendant No. 1 is entitled to recover.\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 31 :-<\/span><\/p>\n
     Therefore, if the Plaintiff’s possession on the basis of an<\/p>\n
     agreement, the Plaintiff himself claims, is found to be<\/p>\n
     unauthorized or of trespasser’s possession after the expiry<\/p>\n
     of the licence period, it will not be possible for this Court to<\/p>\n
     issue an order of temporary injunction against the<\/p>\n
     Defendants. Because, prima facie, we find that the Plaintiff’s<\/p>\n
     possession is of the trespasser’s possession on the basis of<\/p>\n
     the documents which he claims the possession, namely, the<\/p>\n
     leave and licence agreement dated 21st June 2004 and the<\/p>\n
     above referred to clauses from the said document.\n<\/p>\n
     Therefore, even assuming that the agreement of leave and<\/p>\n
     licence during the period of leave and licence is irrevocable,<\/p>\n
     after the expiry of the licence period, the possession of the<\/p>\n
     Plaintiff turns out to be the trespasser’s and\/or unauthorised<\/p>\n
     possession. What is interesting to be noted is that, that the<\/p>\n
     leave and licence agreement, Security deposit agreement<\/p>\n
     and amenities agreement, reading themselves do not<\/p>\n
     provide for an extension or renewal of agreement between<\/p>\n
     the parties. Therefore, analyzing the case of the Plaintiff on<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                      -: 32 :-<\/span><\/p>\n
     the basis of these three documents it is crystal clear that on<\/p>\n
     the expiry of the period of licence the possession of the<\/p>\n
     Plaintiff in the suit premises will be that of the trespasser or<\/p>\n
     unauthorised occupant.\n<\/p>\n
     16.      We are aware that and even it is the contention of<\/p>\n
     the Plaintiff that prior to the expiry of the licence period the<\/p>\n
     Plaintiff had a right to get the licence period renewed<\/p>\n
     including the agreement of Addendum dated 21st June 2004<\/p>\n
     and therefore the Plaintiff relies upon Clauses (9) & (10) of<\/p>\n
     the leave and licence agreement dated 21st June 2004.\n<\/p>\n
     They are as follows.\n<\/p>\n
                  “9.           The Licensor shall always be entitled
\n                  to    sell,    mortgage,      transfer,         surrender           or<\/p>\n
                  otherwise       dispose       of    the      said       Licensed
\n                  Premises or any part thereof to any person,
\n                  firm, company during the continuance of this
\n                  Agreement provided that such sale, mortgage,
\n                  transfer, surrender or otherwise disposal of the
\n                  said Licensed Premises. Shall not affect in any<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 33 :-<\/span><\/p>\n
                 way whatsoever the rights of the Licensee
\n                 and\/or obligations of the Licensor under this<\/p>\n
                 Agreement.\n<\/p><\/blockquote>\n
                 10.      The rights of the Licensor to sell,
\n                 mortgage, transfer, surrender or otherwise
\n                 dispose of the said Licensed Premises to any<\/p>\n
                 person shall not affect in any way whatsoever<\/p>\n
                 the rights of the Licensee pursuant to this
\n                 Agreement.     The Licensor shall bring this<\/p>\n
                 Agreement and any amendment or addendum
\n                 thereto to the attention of any prospective<\/p>\n
                 purchaser or mortgagee or assignee and shall
\n                 include in any such agreement to transfer the<\/p>\n
                 Licensor’s   interest     in    the      said       Licensed
\n                 Premises, a clause whereby the intending<\/p>\n
                 Transferee \/ Mortgagee confirms the terms of
\n                 this Agreement including any amendment or
\n                 addendum thereto and agrees to abide by and<\/p>\n
                 comply with the obligations of the Licensor
\n                 under this Agreement.”\n<\/p><\/blockquote>\n
     17.      Thus, by making a reference to these clauses the<\/p>\n
     learned counsel for the Plaintiff submits that the Defendant<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                   -: 34 :-<\/span><\/p>\n
     No. 1 who is the purchaser has purchased the suit premises<\/p>\n
     subject to the leave and licence agreement, amenities<\/p>\n
     agreement,     security    deposit      agreement            and        more<\/p>\n
     specifically the amendment and\/or the Addendum.                            He<\/p>\n
     submits that the licensor is under obligation to bring these<\/p>\n
     agreements and the amendments and\/or Addendums<\/p>\n
     thereto to the attention    of the prospective purchaser or<\/p>\n
     mortgagee or assignee and shall include in such agreement<\/p>\n
     to transfer, the licensor’s interest in the said licensed<\/p>\n
     premises, a      clause whereby the intending transferor,<\/p>\n
     mortgagee confirms the terms of this agreement including<\/p>\n
     any amendment and\/or Addendum thereto. Thereby it is the<\/p>\n
     contention that it was licensor’s responsibility to bring to the<\/p>\n
     notice of the prospective purchaser the rights of the Plaintiff<\/p>\n
     under the leave and license agreement                         and other<\/p>\n
     documents coupled with the amendment or Addendum<\/p>\n
     thereto.   In short, the learned counsel for the Plaintiff<\/p>\n
     submitted that the Addendum of which the Defendant No.1<\/p>\n
     is claiming an ignorance is binding on Defendant No. 1.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 35 :-<\/span><\/p>\n
     What is interesting to be noted is that, that the sale<\/p>\n
     agreement which is executed by the Defendant No. 2 in<\/p>\n
     favour of the Defendant No. 1 though makes a reference to<\/p>\n
     the agreement of leave and licence, amenities agreement<\/p>\n
     and security deposit agreement, all dated 21st June 2004,<\/p>\n
     but it does not make a reference to the Addendum or side-\n<\/p>\n
     letter which provides for extension of the period of leave and<\/p>\n
     licence being dated 21st June 2004.                     Under these<\/p>\n
     circumstances the dispute as to whether the said letter is<\/p>\n
     binding on Defendant No. 1 or not, is a question to be dealt<\/p>\n
     with in the trial of the suit. No doubt, at a prima facie stage<\/p>\n
     the learned Single Judge has observed that all the four<\/p>\n
     documents will have to be considered which were executed<\/p>\n
     between the Plaintiff and the Defendant No. 1 on 21st June<\/p>\n
     2004, and therefore the intention of the parties, namely,<\/p>\n
     what type of agreement they wanted in between them can<\/p>\n
     be constructed only on the basis of the transaction between<\/p>\n
     them.\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 36 :-<\/span><\/p>\n
     18.      However, what is to be noted is that, that the so<\/p>\n
     called Side-letter or Addendum is by way of a letter which<\/p>\n
     has been signed by the Defendant No. 2 and addressed to<\/p>\n
     the Plaintiff. The letter itself makes a reference that we have<\/p>\n
     already executed today the leave and licence agreement,<\/p>\n
     the amenities agreement and the agreement for security<\/p>\n
     deposit, collectively the agreements, and thereafter the said<\/p>\n
     letter has been written. Therefore, whether the said letter is<\/p>\n
     to be treated as executed simultaneously with the other<\/p>\n
     three agreements or it is a subsequently written agreement<\/p>\n
     is a matter to be scrutinized in the evidence. If it is found<\/p>\n
     that this letter is binding as against the Defendant No. 1,<\/p>\n
     then the specific performance of this letter can be enforced<\/p>\n
     as against the Defendant No. 1. But for whatsoever reason<\/p>\n
     in final analysis after evidence if the Court finds that this<\/p>\n
     letter is not binding as against the Defendant No. 1, the<\/p>\n
     specific performance of the agreement cannot be granted.\n<\/p>\n
     This depends upon the binding nature of the clauses from<\/p>\n
     the leave and license agreement referred to above.\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                   -: 37 :-<\/span><\/p>\n
     Because the above referred clauses place an obligation on<\/p>\n
     the Defendant No. 2 to disclose the agreements between<\/p>\n
     the Plaintiff and the Defendant No. 2 to the prospective<\/p>\n
     purchasers. But the question remains if the Defendant No. 2<\/p>\n
     has not discharged the said obligation then in that<\/p>\n
     circumstance whether those clauses will be binding as<\/p>\n
     against the prospective purchaser.         The Defendant No. 1<\/p>\n
     has raised a dispute in this respect and at this stage it will be<\/p>\n
     inappropriate to reach any prima facie conclusion. Because<\/p>\n
     the finding in this respect is to be recorded after a full<\/p>\n
     fledged trial and the evidence for that purpose is not before<\/p>\n
     this Court and the necessary facts to infer either way, i.e., in<\/p>\n
     favour of the Plaintiff or the Defendant No. 1, are not on<\/p>\n
     record. At this stage, we can only say that it appears that<\/p>\n
     there was a Side letter or Addendum which was executed by<\/p>\n
     the Defendant No. 2 and was addressed to the Plaintiff<\/p>\n
     which provided for a right to renew the leave and licence<\/p>\n
     agreement and other agreements, initially for a period of 15<\/p>\n
     months and thereafter for a period of 18 months and 33<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 38 :-<\/span><\/p>\n
     months as provided in the said letter.          Therefore, at the<\/p>\n
     most, at this stage we can say prima facie that there was an<\/p>\n
     agreement in between the Plaintiff and the Defendant No. 2<\/p>\n
     to renew the leave and licence agreement and other<\/p>\n
     documents. But whether the said document is binding on<\/p>\n
     the Defendant No. 1 is a question to be scrutinized on<\/p>\n
     evidence between the parties, and this is because the said<\/p>\n
     document or the transfer document in favour of the<\/p>\n
     Defendant No. 1 does not make a reference to the<\/p>\n
     Addendum. Not only that but the resolutions which have<\/p>\n
     been passed by the Defendant No. 2 authorizing to execute<\/p>\n
     the documents of leave and licence, etc., make reference<\/p>\n
     only to the leave and licence agreement for the period of 33<\/p>\n
     months and there is no reference to the Side-letter or the<\/p>\n
     Addendum to be signed by any authorized person.                         We<\/p>\n
     cannot forget that the Defendant No. 2 is a limited Company,<\/p>\n
     and therefore unless there is authorization on behalf of the<\/p>\n
     Company the agreement cannot be said to be operative as<\/p>\n
     against the said Company.      Presently we do not find on<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 39 :-<\/span><\/p>\n
     record any authorization in favour of any person who has<\/p>\n
     signed the said Side letter or Addendum issued by the<\/p>\n
     Company. No doubt, we have noted that on the said letter<\/p>\n
     the Plaintiff’s Managing Director has agreed and confirmed<\/p>\n
     the terms. But all these disputed facts so far as the Plaintiff<\/p>\n
     and the Defendant No. 1 are concerned are required to be<\/p>\n
     scrutinized in evidence.    We are aware that the learned<\/p>\n
     Single Judge has observed that all these agreements will<\/p>\n
     have to be read together and they are valid. However, that<\/p>\n
     is a prima   facie finding of the learned Single Judge. We<\/p>\n
     cannot forget at this stage the controversy and triable issues<\/p>\n
     which have been raised by the parties to which we have<\/p>\n
     made a reference. Therefore, what we find is that, that the<\/p>\n
     approach of the learned Single Judge holding that these<\/p>\n
     documents are to be read together and are valid in law, can<\/p>\n
     be equally accepted at this stage. But what is interesting to<\/p>\n
     note is that the learned Single Judge has observed that<\/p>\n
     these documents cannot be said to be enforceable at law,<\/p>\n
     because    compensation      is   the      appropriate             remedy.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 40 :-<\/span><\/p>\n
     Therefore, we also find that, even if we assume for a<\/p>\n
     moment that these documents are binding as against the<\/p>\n
     Defendant No. 1 as submitted by the learned counsel for the<\/p>\n
     Plaintiff, yet we also agree with the learned Single Judge<\/p>\n
     that compensation is an adequate remedy in case there is<\/p>\n
     breach   of   the   agreement.        Therefore         the       specific<\/p>\n
     performance of the agreement cannot be granted. This is a<\/p>\n
     prima facie view of the learned Single Judge and we endorse<\/p>\n
     the same. Thus, what we find that even tough we find that<\/p>\n
     there are triable issues as referred in between the Plaintiff<\/p>\n
     and the Defendant No. 1, but assuming for a moment and<\/p>\n
     agreeing with the learned Single Judge, we also endorse the<\/p>\n
     view of the learned Single Judge.        Because in a suit for<\/p>\n
     specific performance it is always a question to be placed<\/p>\n
     before the Court that even though the agreement has been<\/p>\n
     established whether the specific performance has to be<\/p>\n
     granted or not. Because it is always a discretionary relief<\/p>\n
     and therefore only because the Plaintiff has established an<\/p>\n
     agreement that does not mean that the Plaintiff has to get a<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 41 :-<\/span><\/p>\n
     decree for specific performance of the agreement. There<\/p>\n
     are factors to be considered under Section 20 of the Specific<\/p>\n
     Reliefs Act, and thereby whether to grant a decree or not to<\/p>\n
     grant a decree is a discretion of the trial Court. It is well<\/p>\n
     settled principle of law that when a decree for compensation<\/p>\n
     can be granted as an alternative, the specific performance<\/p>\n
     shall not be granted. In an agreement of leave and licence<\/p>\n
     wherein the period of the leave and licence agreement is<\/p>\n
     over and the renewal is subject to the decree likely to be<\/p>\n
     passed in the suit, the right to specific performance which is<\/p>\n
     being claimed cannot be said to be a right in the property,<\/p>\n
     but it is a right to obtain another covenant, namely, the<\/p>\n
     renewal of the leave and licence agreement. Therefore, the<\/p>\n
     right which is being sought to be executed is not a right in<\/p>\n
     the property but is a right to get a conveyance in respect of<\/p>\n
     the suit premises, here, namely the leave and licence<\/p>\n
     agreement. It is to be noted that leave and licence generally<\/p>\n
     does not create a right in the property or interest in the<\/p>\n
     property.   It is only a right to enjoy the property for a<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 42 :-<\/span><\/p>\n
     specified period without creating any interest in the property<\/p>\n
     and the covenant in respect of this is being asked for by a<\/p>\n
     suit for specific performance. Therefore, it is a matter to be<\/p>\n
     considered under Section 20 of the Specific Relief Act and is<\/p>\n
     completely within the discretion of the Court. The argument<\/p>\n
     that there is an irrevocable licence and therefore the specific<\/p>\n
     performance will have to be granted does not persuade us.\n<\/p>\n
     Because as the the learned Single Judge has observed and<\/p>\n
     we have also endorsed the said view the the leave and<\/p>\n
     licence agreement is irrevocable during the period of<\/p>\n
     licence. That period is now over. We are considering the<\/p>\n
     renewal of the licence after completion of the initial period of<\/p>\n
     33 months, and therefore whether the Plaintiff is entitled to<\/p>\n
     the renewal in view of the clause in the Addendum, and<\/p>\n
     whether the same is binding as against the Defendant No. 1<\/p>\n
     so as to pass a decree is the question which the learned<\/p>\n
     Single Judge has to consider. If the suit is decreed and the<\/p>\n
     renewal documents are executed, the further period of<\/p>\n
     licence will commence on the basis of the said would be<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 43 :-<\/span><\/p>\n
     decree and on execution of those documents. However, that<\/p>\n
     stage is yet to come. Presently, all the issues and questions<\/p>\n
     are triable issues before the trial Court. Therefore on the<\/p>\n
     basis of an established document, i.e., the leave and licence<\/p>\n
     agreement dated 21st June 2004, the possession of the<\/p>\n
     Plaintiff will have to be treated as unauthorised and that of<\/p>\n
     the trespasser in view of the above referred clauses of the<\/p>\n
     leave and licence agreement. We have to respectfully note<\/p>\n
     that this aspect and these clauses have not been considered<\/p>\n
     by the learned Single Judge in the proper perspective.\n<\/p>\n
     Therefore, even though he prima facie found that the<\/p>\n
     compensation is an appropriate remedy and thereby found<\/p>\n
     that there is no prima facie case to grant the specific<\/p>\n
     performance of the agreement and thereby rejected the<\/p>\n
     prayer clause (a) of the Notice of Motion, yet he has ignored<\/p>\n
     to take into consideration that the prayer clause (a) can also<\/p>\n
     be rejected on the ground that the possession of the Plaintiff<\/p>\n
     in the suit premises after the completion of 33 months<\/p>\n
     period, i.e., licence period, is that of the trespasser and<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 44 :-<\/span><\/p>\n
     unauthorised occupant as per the terms in the leave and<\/p>\n
     licence agreement, which entitles the Defendant No.1                        to<\/p>\n
     recover the damages on per day basis, as provided in the<\/p>\n
     above referred to clauses. Therefore, what we find is that,<\/p>\n
     that it appears that the learned Single Judge was<\/p>\n
     overwhelmed with the fact that the entry of the Plaintiff is<\/p>\n
     lawful entry in the suit premises, and therefore the said entry<\/p>\n
     continues to be lawful under the said agreement till the<\/p>\n
     Plaintiff is not lawfully evicted from the suit premises. What<\/p>\n
     we find is that, that the observation made by the learned<\/p>\n
     Single Judge in paragraph no. 22 and in the operative part<\/p>\n
     of the impugned order, that till the Plaintiff is removed from<\/p>\n
     the possession of the property the Plaintiff shall continue to<\/p>\n
     enjoy the said property on the same terms and conditions as<\/p>\n
     provided in the leave and licence agreement, security<\/p>\n
     deposit agreement and amenities agreement, is not a<\/p>\n
     correct finding and correct direction. Because, the learned<\/p>\n
     Single Judge has ignored the clauses which provide for a<\/p>\n
     per day basis compensation referred to above. Therefore,<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                 -: 45 :-<\/span><\/p>\n
     what we find is that, that the observations made by the<\/p>\n
     learned Single Judge in paragraph no. 22 and the last<\/p>\n
     operative part deserves to be set aside and as a result<\/p>\n
     Appeal No. 182 of 2008 deserves to be allowed.\n<\/p>\n
     19.      So far as the irreparable loss is concerned, that<\/p>\n
     agreement between the parties is leave and licence which<\/p>\n
     only gives a right to enjoy the property without creating any<\/p>\n
     right and\/or interest in the property. The so-called period of<\/p>\n
     irrevocable licence is also over and since we do not find that<\/p>\n
     there is any right in favour of the Plaintiff except that the<\/p>\n
     Plaintiff may have a right to get executed another leave and<\/p>\n
     licence agreement from the Defendant if the suit is decreed<\/p>\n
     in favour of the Plaintiff. That right to get another<\/p>\n
     conveyance is not a right in the property.                   Therefore,<\/p>\n
     ultimately we find that there is no right in favour of the<\/p>\n
     Plaintiff which the Plaintiff has in the suit property.\n<\/p>\n
     Therefore, if the injunction is not granted there will not be<\/p>\n
     any irreparable loss. On the contrary the right which the<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                   -: 46 :-<\/span><\/p>\n
     Plaintiff is claiming can be compensated in terms of money<\/p>\n
     by providing liquidated damages.              Not only that but the<\/p>\n
     Plaintiff himself has made an alternative prayer in the suit<\/p>\n
     claiming   damages     in   case        the    decree        for      specific<\/p>\n
     performance is not granted. Thereby, the Plaintiff himself is<\/p>\n
     aware that the claim which he has made in respect of the<\/p>\n
     suit premises can be compensated in terms of money also.\n<\/p>\n
     The same is the view taken by the learned Single Judge,<\/p>\n
     and since we find that the Plaintiff has no right in the suit<\/p>\n
     property and whatever right the Plaintiff claims can be<\/p>\n
     compensated in terms of money, we find that it is not a case<\/p>\n
     of irreparable loss by which the plaintiff is entitled to interim<\/p>\n
     relief. So far as the balance of convenience is concerned,<\/p>\n
     we do not find that the balance of convenience is in favour of<\/p>\n
     the Plaintiff at this stage.    However, we agree with the<\/p>\n
     learned Single Judge that the Defendant No. 1 cannot take<\/p>\n
     the law in hand and the Plaintiff though is in unlawful<\/p>\n
     possession or a trespasser as per the document of leave<\/p>\n
     and licence, yet the Defendant will have to take possession<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                   -: 47 :-<\/span><\/p>\n
     of the property by following the due process of law. It is a<\/p>\n
     well settled principle that even the trespasser cannot be<\/p>\n
     removed by taking the law in hand and the person entitled to<\/p>\n
     possession of the property shall obtain the possession of the<\/p>\n
     property by following the due process of law and that is the<\/p>\n
     method of getting the possession of the property in a<\/p>\n
     civilized Society. Therefore we at this stage only record our<\/p>\n
     finding that the decision of the learned Single Judge to reject<\/p>\n
     the Notice of Motion is just and proper and does not require<\/p>\n
     any interference at the hands of this Court. The findings<\/p>\n
     recorded by the learned Single Judge in addition to the<\/p>\n
     reasons which we have given are endorsed by us. The legal<\/p>\n
     cases which have been referred to and relied upon by the<\/p>\n
     learned Single Judge are approved by us and we agree with<\/p>\n
     the learned Single Judge to that effect. We find that the<\/p>\n
     order passed by the learned Single Judge is perfectly<\/p>\n
     correct except paragraph no. 22 and the last direction which<\/p>\n
     is given against the Defendant No. 1, namely, that the<\/p>\n
     Plaintiff shall continue in possession of the property till he is<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                   -: 48 :-<\/span><\/p>\n
     evicted from the suit premises by following the due process<\/p>\n
     of law on the basis of the leave and licence agreement,<\/p>\n
     security deposit agreement and amenities agreement.\n<\/p>\n
     Therefore, we set aside the said observations in paragraph<\/p>\n
     no.22 and the last direction given by the learned Single<\/p>\n
     Judge in the impugned order which is referred to above.\n<\/p>\n
     Because, as a result of those observations the right of the<\/p>\n
     Defendant No.1 to claim the per day damages as provided<\/p>\n
     in the leave and licence agreement after the licence period<\/p>\n
     is over is prejudiced. That cannot be done by us. It is for<\/p>\n
     the parties to follow the appropriate course for execution of<\/p>\n
     those rights.   In short, Appeal No. 182 of 2008 filed by the<\/p>\n
     original Defendant no.1 is allowed to the extent of setting<\/p>\n
     aside the observations made by the learned Single Judge in<\/p>\n
     paragraph no. 22 and the last direction given in the<\/p>\n
     impugned order that the Plaintiff shall continue to enjoy the<\/p>\n
     suit property on the basis of the leave and licence<\/p>\n
     agreement,      amenities    agreement,           security          deposit<\/p>\n
     agreement till the Plaintiff is evicted from the suit property by<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                      -: 49 :-<\/span><\/p>\n
     following the due process of law, is quashed and set aside<\/p>\n
     and to that extent Appeal No. 182 of 2008 is allowed. So far<\/p>\n
     as Appeal No. 139 of 2008 which has been filed by the<\/p>\n
     Plaintiff is concerned it is dismissed.\n<\/p>\n
                    Sd\/-                                  Sd\/-\n           (Prasanna B. Varale,J.)\n                      ig                            (S. B. Mhase,J.)\n                    \n      \n   \n\n\n\n\n\n<\/pre>\n
     20.         At this stage, Mr. Pravin Samdani, the learned<\/p>\n
     senior counsel for the appellants in Appeal No. 139 of 2008<\/p>\n
     and for the respondents in Appeal No.182 of 2008 prayed<\/p>\n
     for continuation of the interim order which was granted by<\/p>\n
     the appeal Court.      Mr. Darius Khambatta, learned senior<\/p>\n
     counsel for the appellants in Appeal No.182 of 2008 and for<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>
\n                                  -: 50 :-<\/span><\/p>\n
     the respondents in Appeal No.139 of 2008 vehemently<\/p>\n
     opposed grant of such continuation of the interim order.\n<\/p>\n
     However, for the sake of justice and in order to enable the<\/p>\n
     appellants\/respondents to follow the appropriate remedy as<\/p>\n
     against the order which we have passed, the interim order is<\/p>\n
     continued for a period of eight (8) weeks.\n<\/p>\n
                                                   Sd\/-\n<\/p>\n
                                             (S.B. Mhase, J.)<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:24:56 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Companies Act vs Global Earth Properties & on 16 March, 2009 Bench: S.B. Mhase, Prasanna B. Varale -: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL No. 139 OF 2008 IN NOTICE OF MOTION No. 3062 OF 2007 IN SUIT No. 2316 OF 2007. Loreal India Private […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-51060","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nCompanies Act vs Global Earth Properties & on 16 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/companies-act-vs-global-earth-properties-on-16-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Companies Act vs Global Earth Properties & on 16 March, 2009 - 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