Summary of Judgement

The Judgement

JUDGMENT:

1. The present Suit is filed by Plaintiffs for 5 claims titled as (1) Licence fee for one month; (2) compensation in lieu of six months notice period; (3) costs for removal of RCC column and debris; (4) costs for compound wall; and (5) additional license fee for use of balance Suit plot in the particulars of claim / Exhibit “P” to the Suit plaint. Defendant has filed Counter Claim of Rs.7,86,550/- for losses incurred by Defendant for construction of the Ground Based Tower (for short “GBT”) which was demolished by the Corporation.

2. Relevant facts for adjudication of the present case are as under:-

2.1. Plaintiff No.1 executed a leave and license agreement dated 18.09.2008 (for short “the Licence Agreement”) with Defendant, allowing use of 250 square feet area out of Plaintiffs’ larger property admeasuirng 4970 square feet bearing Survey No.32, CTS No.158 situated opposite Sea Pearl, Madh, Malad, Mumbai – 400 065. For sake of convenience, licensed premises under the license agreement admeasuring 250 square feet will be referred to as “the Suit plot”. Plaintiff No.2, father of Plaintiff No.1 is the original owner of the Suit plot and the larger property. By registered Gift Deed dated 20.12.1995, Plaintiff No.2 transferred all rights in the Suit plot and larger property to Plaintiff No.1.

2.2. In and around July 2008, Defendant was looking for a plot of land to erect a Ground Based Tower (for short “GBT”) for transmission in Madh area at Malad, Mumbai. One Mr. Jainik Adani on behalf of Defendant approached Plaintiff No.2 father of Plaintiff No.1 and offered to take the area of 250 square feet out of the larger property for erecting the GBT. In August 2008, Mr. Adani revisited the Suit plot alongwith one Mr. Apurva, Defendant’s Surveyor to measure the intensity of communication signals from the Suit plot alongwith equipment and identified the Suit plot i.e. the area ad-measuring 250 square feet towards the northern part of the larger property of Plaintiffs as suitable for erecting the GBT.

2.3. On 02.08.2008, Mr. Adani visited office of Plaintiff No.2 and handed over a check list of documents required by Defendant’s legal Department in the presence of one Mr. Amit Mane, who has turned in as Plaintiffs’ witness No.2 in the Suit proceedings. According to Defendant, on instructions of Plaintiff No.2, Mr. Amit Mane provided inspection and copies of 9 documents out of the documents sought for by Defendant as per its check list. Out of the check list, a crucial letter dated 19.03.1994 issued by MGGM (Municipal Corporation of Greater Mumbai) alongwith the map demarcating the larger property as also the Suit plot was not handed over to Defendant.

2.4. Based on the above interaction and exchanges, on 02.08.2008 a preliminary letter of intent was executed between parties which is appended at page No.420 of Volume 4 of the common paper book.

2.5. It is Plaintiffs’ case that on 06.08.2008, one Mr. Ranga, CFO of Defendant and one Mr. Pandey who turned in as Defendant’s witness No.1 visited Plaintiff No.2 in his office and collected the letter dated 11.03.1994 issued by MCGM alongwith the map demarcating the entire Suit plot as per check list which was handed on 02.08.2008. This fact is however refuted and denied by Defendant – Company on several grounds, namely that such a visit on 06.08.2008 is not stated in the Suit plaint, that CFO of the Company namely Mr. Ranka would never visit any site considering his position and status, that the Defendant was in the business of erecting thousands of such towers and was operating them and more specifically on the ground that Mr. Pandey was not in the employment of the Defendant on that date.

2.6. On 18.09.2008, leave and license agreement was executed between parties permitting Defendant to use the Suit plot for a tenure of 10 years and to construct the GBT and do other ancillary works.

2.7. On 18.09.2009, Mr. Adani informed the Plaintiffs that M/s. Idea Cellular will be the second operator sharing the existing cellular site and their equipment will be installed as and when the GBT is erected. Due to this, Plaintiffs entered into an addendum by way of Letter of Intent (for short “LOI”) with Defendant regarding sharing of the existing cellular site.

2.8. On 20.11.2008, Defendant through his Architect applied to the Municipal Corporation (at page No.322 volume 3) for permission to construct the GBT on the Suit plot. According to Defendant, the Application which was made was itself erroneous, since it sought permission for construction of a rooftop tower and regularization of the tower. During the course of submissions, Mr. Patil, learned Advocate for Defendant would submit that copy of this application dated 20.11.2008 is marked for identification as Exhibit “Y-1” vide order 16.06.2016. He would submit that in view of the answers given to question Nos.105 to 111 by Defendant’s witness in evidence on the above document, this document should be marked in evidence as Plaintiffs’ document. During the course of submissions on behalf of Plaintiffs, Mr. Naidu has relied upon this very document on behalf of Plaintiffs and has made his submissions thereon on merits of Plaintiff’s case. Since both parties have relied on this document in their witnes action as well as their submissions, I am inclined to mark the said document as an Exhibit in evidence. Hence, the document marked for identification as Exhibit “Y-1” is marked as Plaintiffs’ Exhibit. The dispute emanates and begins from this stage onwards.

2.9. Since no permission was received from the Corporation, on 04.02.2009, Defendant commenced construction of the GBT on Suit plot, on the premise that under the provisions of Section 45(5) of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”), deemed permission stood granted to Defendant.

2.10. On 14.04.2009, Mr. Adani by letter informed Plaintiffs that Application was made to the Corporation for seeking permission and approval and shared the layout plan with Plaintiffs.

2.11. On 15.04.2009, Plaintiff No.2 replied to Defendant’s above letter and requested Defendant to alter and modify the positioning of the GBT as per layout, since Plaintiffs did not want their balance larger property to be blocked completely due to the said construction. Between 15.04.2009 and 18.08.2009, Defendant carried out construction of the GBT on Suit plot. Due to construction, officers of Municipal Corporation visited the Suit plot and on 18.08.2009 issued a stop work notice to Defendant on the ground that the Suit plot was situated in a “No Development Zone” (NDZ). According to Defendant, on receiving the stop work notice, for the first time it realised that the Suit plot was situated in “No Development Zone”, rather the entire larger property of Plaintiffs was situated in “No Development Zone” and no construction could be carried out.

2.12. On 19.08.2009, the Corporation demolished the GBT standing on the Suit plot.

2.13. For a period of one year between 19.09.2008 and 17.09.2009, Defendant paid the license fee to Plaintiffs under the Leave and License Agreement as agreed between parties totalling to Rs.5,25,000/-.

2.14. On 16.10.2009, Defendant issued a termination letter to Plaintiffs terminating the leave and license agreement, citing impossibility for Defendant to continue any further with the license agreement on the ground that Plaintiffs had concealed the fact that the Suit plot was situated in a “No Development Zone” from Defendant since inception because of which the GBT constructed by Defendant was demolished by Corporation. It is Defendant’s case that after issuing the termination letter, Defendant’s representatives visited the Suit plot to clear the debris, but Plaintiffs did not permit them to do so.

2.15. On 09.11.2009, Plaintiff No.1 replied to the termination letter and in turn sought to recover license fee under the leave and license Agreement from Defendant without responding to the issue about suppression of the fact that the Suit plot was situated in a “No Development Zone”. On 11.01.2010, Defendant issued a rejoinder to Plaintiffs’ reply denying Plaintiffs’ claim.

2.16. In March 2010, Plaintiffs filed the present Suit seeking monetary claim of Rs.1,20,06,250/- alongwith 18% interest per annum towards (1) Licence fee for one month; (2) compensation in lieu of six months notice period; (3) costs for removal of RCC column and debris; (4) costs for compound wall; and (5) additional license fee for use of balance Suit plot arising out of the leave and license Agreement. Defendant in the month of March 2010 filed counter-claim of Rs.7,86,550/- alongwith 10% interest per annum for losses suffered by Defendant for constructing the GBT which was demolished by the Corporation.

2.17. On 12.12.2014, this Court framed the following issues:-

“(1) Whether this court has jurisdiction to receive, try and dispose of the suit?

(2) Whether the plaintiffs prove that the plaintiffs handed over the 7 documents referred to in paragraph-7 of the plaint together with the letter of intent dated 2.8.2008 ?

(3) Whether the plaintiffs prove that the obligation to secure all permissions, sanctions, licenses & approvals from the Municipal Corporation of Gr. Bombay and other authorities, was on the defendants and the defendants' failed in obtaining such permissions, sanctions, licenses and approvals, resulting in the demolition of the partially erected structure of the defendants ?

(4) Whether the defendants prove that the termination of the agreement dated 18.9.2008 was valid and legal ?

(5) Whether the plaintiffs prove that defendants would not have entered into an agreement dated 18.9.2008 but for the representation made by the plaintiffs which later turned out to be incorrect ?

(6) Whether the plaintiffs prove that they are entitled to a decree against the defendants in the sum of Rs.1,20,06,250/- together with interest thereon @ 24% p.a. from the date of the suit until payment/realization ?

(7) Whether the defendants prove that they have suffered loss due to acts and omissions of the plaintiffs and the loss is in the sum of Rs.7,86,550/- ?

(8) Whether the defendants prove that they are entitled to a decree against the plaintiffs in the sum of Rs.7,86,550/- ?

(9) Whether the defendants prove that they are entitled to interest @ 18% p.a. and for what period ?

 (10) What decree ? What order ?

3. On perusal of the above issues and after hearing the learned Advocates appearing for the parties, I find that issue Nos.2 and 3 are the principal contentious issues which are required to be determined by this Court on the basis of the dispute raised by the parties. However, before I proceed with the issues, at the outset the issue of jurisdiction has also be framed as issue No.1, which has been argued vehemently by both sides. Hence, I propose to decide the said issue at the outset, so that depending upon its outcome, I can either look into the other issues or otherwise pass appropriate directions.

3.1. It is seen that Court has framed the issue of jurisdiction which is issue No.1. This is because Defendant in its written statement has raised the issue of jurisdiction and averred that the subject matter of the Suit proceedings and more specifically the principal prayers prayed for by Plaintiffs are based on the leave and license agreement and thus stand covered by the provisions of the Maharashtra Rent Control Act, 1999. In that view of the matter, according to Defendant it is the Court of Small Causes at Mumbai which will have exclusive jurisdiction to decide such a Suit and not this Court.

4. Mr. Naidu, learned Advocate appearing on behalf of the Plaintiffs at the outset draw my attention to Issue No.1 which reads as follows:-

“(1) Whether this court has jurisdiction to receive, try and dispose of the suit?

4.1. He would submit that objection of Defendant as to maintainability of the Suit is based on the provisions of Section 33 of the Maharashtra Rent Control Act, 1999. He would submit that for raising such an objection the facts of the case at hand are required to be looked into. He would submit that objection by Defendant is based on a misdescription in the Suit agreement. He would submit that a printed copy of the Suit agreement was provided by Defendant to Plaintiffs. The Plaintiffs thereafter filled in the blanks with the required details. He would submit that it is an admitted and undisputed factual position that the Suit plot is an open plot of land which is evident from the schedule of the Agreement. He would submit that since it is an open plot of land, the averments made by Defendant in its written statement and Affidavit of evidence of its witness No.1 will have to be considered by the Court. He would submit that Defendant has clearly averred in the Affidavit of evidence of its witness No.1 that it was looking for a plot of land to erect the GBT in Madh area in Malad. This would imply that Defendant was not looking for premises, but an open plot of land. He would submit that interaction and negotiations between parties culminated in the Defendant agreeing to take over the open land parcel ad-measuring 250 square feet (Suit plot) out of the larger property belonging to Plaintiffs. He would submit that in reply to several questions in witness action Defendant’s witness No.1 has admitted that the Suit agreement i.e. the Leave and License Agreement was a grant in favour of Defendant of 250 square feet of open land belonging to Plaintiffs to permit Defendant to erect the GBT. In view of the above submissions, he would submit that it is an undisputed position that open vacant land was conveyed by the Agreement, which does not fall within the ambit of the expression "premises" as defined under Section 7(9) of the Maharashtra Rent Control Act, 1999 and therefore the Small Causes Court will not have jurisdiction as alleged by Defendant and it is the Civil Court which will have jurisdiction to determine the lis between the parties.

4.2. In support of this above proposition, he has referred to and relied upon the decision of the Supreme Court in the case of Kamla Devi Vs. Laxmi Devi 1 and a decision of this Court in the case of Pradeep Advertising Agency, Nagpur Vs. Sri Aurbindo Circle, Registered Society, Nagpur and Ors. 2 to contend that an open plot of land cannot be construed as falling within the meaning of the term "premises" as defined and the Rent Control Act will thus not apply to such a grant in open land. He would submit that in order to determine the nature of the Suit proceedings, this Court consider the prayers in the Suit and ascertain whether they can be granted by this Court. He would submit that in view of the undisputed fact that Plaintiffs have given a grant of 250 square feet open land to Defendant to install the GBT for a tenure of 10 years and were to receive compensation as agreed upon between the parties as stated in the agreement, the Suit is maintainable in the Civil Court. He would submit that a critical analysis of the claim and reliefs prayed for by Plaintiffs is to be seen. According to Plaintiffs, though the principal claim in the particulars of claim i.e. claims (1), (2) and (5) is on account of license fee, it is 1 (2000) 5 SCC 646 : AIR 2000 SC 1640 2 2015 (2) Mh.L.J. 167 however to be construed as compensation for loss of income to Plaintiffs during that period. Similarly, claim at item Nos.2 and 5 will also have to be construed as loss of income to the Plaintiffs from the Suit plot, which they would have received otherwise. He would submit that since admittedly Defendant was in possession of the Suit plot including the larger property admeasuring 4970 square feet between 19.08.2009 and 16.10.2009, Defendant is liable to compensate loss of income incurred by Plaintiffs for the same. He would submit that the aforesaid 2 principal claims pertain to loss of income on account of retrospective termination of grant and such a claim cannot come within the jurisdiction of the Small Causes Court under Section 41(1) of the said Act. He would submit that under the provisions of Order II Rule 1 of the Code of Civil Procedure, 1908 (for short “CPC”) it is mandated that the Suit shall include the whole of the claim which the Plaintiffs are entitled to make in respect of the cause of action. Hence, he would submit that in so far as claim No.1 is concerned, it will have to be decided by the Civil Court. Regarding the remaining claims prayed for by Plaintiffs, he would submit that Order II Rule 3 of CPC permits joinder of causes of action and therefore a composite Suit is filed by Plaintiffs in the Civil Court in respect of several causes of action which is permissible in law.

4.3. He would submit that under Order II Rule 6 of CPC Civil Court has a power to order separate trials if joinder of causes in one Suit may embarrass or delay trial or if it is otherwise inconvenient. He would submit that under inherent powers of Civil Court envisaged under Section 151 of CPC, Civil Court has the power to deal with claim No.1 in the interest of justice to avoid multiplicity of proceedings.

4.4. In support of his above submissions, he has referred to and relied upon the decision of the Supreme Court in the case of Gurubux Singh Vs. Bhooralal 3 to contend that premise of Order II Rule 2 of CPC is to ensure that no Defendant is sued and vexed twice in regard to the same cause of action and most importantly to prevent Plaintiff from splitting of claims and remedies based on the same cause of action. In that view of the matter, he would submit that claim of Plaintiffs against item No.1 in the particulars of claim will have to be tried by Civil Court having jurisdiction to try and decide the remaining four claims of Plaintiffs which according to the Plaintiffs fall within the jurisdiction of the Civil Court.

4.5. In the same breath he would submit that claim No.2 seeks compensation for loss or damage caused by breach of contract. He would submit that under the Leave and License Agreement, the license / contract could be terminated only with prior intimation / notice. He would submit that Plaintiffs were entitled to six months notice of termination as per clause 11.1 of the Leave and License Agreement. However, the said contract has been prematurely 3 AIR 1964 SC 1810 : (1964) 7 SCR 831 13 terminated without notice resulting in a pecuniary loss to Plaintiffs and therefore claim No.2 seeks the amount of license fee that the Plaintiffs would have received for that six month notice period under the agreement. He would submit that the claim No.2 is therefore nomenclatured as damages caused by breach of contract and pertains to the direct loss or damages suffered by Plaintiffs by abrupt termination of the agreement. He would submit that Plaintiffs have referred to license fee amount which the Defendant was obliged to pay to the Plaintiffs under the agreement for computing the damages under this head. He would submit that damages sought by Plaintiffs against claim No.2 is in respect of breach of clause 11.1 and is in the nature of a specific performance of the terms of the contract.

4.6. He would submit that Section 19 of the said Act specifically excluded jurisdiction of the Small Causes Court in respect of certain Suits specified therein and clause (k) thereof excludes the jurisdiction in respect of a Suit for specific performance. Hence, he would submit that since there is breach of clause No.11.1, the Plaintiffs have sought damages and claim of Plaintiffs is in the nature of specific performance of the said clause and hence it is the Civil Court which will have jurisdiction to determine the same.

4.7. He would submit that in so far as claim Nos.3 and 4 are concerned, those claims pertain to an actionable claim and seek reimbursement of expenses incurred by Plaintiffs to repair the damage caused to the larger Suit property due to negligence on the part of Defendant and therefore Suit for such claims is clearly maintainable in the Civil Court.

4.8. In so far as claim No.5 is concerned, he would submit that Plaintiffs seek compensation for trespass ab-initio on the ground that under the Leave and License Agreement Defendant was given license to use only 250 square feet i.e. the Suit plot for setting up the GBT, whereas Defendant used the entire larger property ad-measuring 4970 square feet. He would submit that right from inception Defendant abused the license agreement and committed trespass over the larger property. He would submit that though claim No.5 may be nomenclatured as additional license fee, it is essentially in the nature of compensation for use of the larger property Defendant and the said claim has been therefore computed on a pro rata basis as per the licence fee by Plaintiffs.

4.9. On the issue of ousting of jurisdiction, he would refer to and rely upon the following decision:-

(i) Abdul Waheed Khan Vs. Bhawani and Ors. 4 ;

(ii) Shrimant Chhatrapati Udyan Raje Pratapsinh Maharaj Bhosale Vs. Shrimant Chatrapati Vijaysinh Raje Shahu Maharaj Bhosale 5 ; and 4 AIR 1966 SC 1718 : 1966 SCC Online SC 25 5 2015 (5) Mh.L.J. 350

(iii) Brainvisa Technologies Pvt. Ltd. Vs. Subhash Gaikwad 6 .

4.10. He would submit that ouster of jurisdiction of the Civil Court must be strictly construed and it cannot be countered. This is so because there is a presumption that the Civil Court will have jurisdiction to decide all questions of civil nature. He would submit that onus lies on the party seeking to oust the jurisdiction to show that there is a clear provisions of intent of the legislature. He would submit that in the case of Brainvisa Technologies Pvt. Ltd. (10 th supra), the issue was whether claim relating to security deposit under the Leave and License Agreement would come within the exclusive jurisdiction of the Small Causes Court. He would submit that security deposit in the Leave and License Agreement is based on the quantum of rent / license fee fixed under the Leave and License Agreement. He would submit that in that case the Court concluded that Suit for recovery of security deposit would not meet the description of a Suit relating to recovery of possession or license fee or charges or rent and therefore would not fall within the exclusive jurisdiction of the Small Causes Court.

4.11. Similarly, while relying upon the decision in the case of Bafna Motors Private Limited (11 th supra), he would draw my attention to paragraph Nos.34 to 38 and 44 to 45 of the said decision to contend that in that case this Hon’ble Court turned down an objection that a 6 2012 SCC Online Bom 2003 : (2013) 7 Bom CR 540 Suit brought by a licensee for damages and refund of security deposit would exclusively lie before the Court of Small Causes. He would submit that in that decision this Court concluded that such a Suit essentially is in respect of claims which includes costs of the items which were allegedly lost or damages and that such claims primarily being in the nature of damages cannot fall within the exclusive jurisdiction of the Small Causes Court.

4.12. He would submit that in that view of the matter, the issue No.1 is required to be answered affirmatively so that all five claims prayed for by the Plaintiffs are adjudicated and decided by this Court.

5. PER-CONTRA, Mr. Patil, learned Advocate appearing for Defendant has vehemently opposed to the submissions and case advanced by Mr. Naidu on the issue of jurisdiction and would contend that in the facts and circumstances of the present case it is only the Court of Small Causes which shall have exclusive jurisdiction to receive, entertain and decide the present Suit. He has drawn my attention to the Suit agreement which is marked in evidence at Exhibit “P-15” during trial. This is the Leave and License Agreement executed by parties. Parties are nomenclatured as ‘Licensors’ and ‘Licensee’ therein. He has next drawn my attention to the particulars of claim appended at Exhibit “P” to the Suit plaint and after reading each of the five claims in seriatim would contend that all claims except claim Nos.3 and 4 pertain to recovery computed on the basis of licence fee only.

5.1. According to Defendant, Civil Court will not have the jurisdiction to deal with the present Suit as it seeks recovery of amount of license fee in view of applicability of the provisions of Section 41 of the Presidency Small Causes Courts Act, 1882 (for short “the said Act”). Mr. Patil would submit that the Small Causes Court will have the exclusive jurisdiction to receive the present Suit. Defendant has raised this preliminary objection in paragraph No.3 of its written statement on the ground that the Suit claim is based on the Leave and License Agreement. The only point of distinction argued by Plaintiffs is that the Suit plot is an open plot of land and therefore irrespective of the nature of the agreement between parties, provisions of the Rent Act will not apply to an open plot of land as an “open plot” is not covered under the definition of “premises” under the said Act. According to Defendant what is required to be considered is the fact that undeniably both parties have executed the Leave and License Agreement and are nomenclatured as ‘Licensor’ and ‘Licensee’ therein. He has drawn my attention to recital B and D thereof which reads as follows:-

“(i) Recital B - “For furtherance of its business interests, the Licensee is interested in obtaining premise’s from the Licensor on License basis...”

(ii) Recital D - “The Licensee intends to take on Leave and License basis from the Licensor area admeasuring approx. 250 sq. feet Carpet Area at ‘Survey No.32, CTS No.158 Opp. Sea Pearl, Madh, Malad (W), Mumbai’ (Hereinafter referred as “Licensed Premises”) together with the use or common area and facilities etc.””

5.2. He would submit that Section 41 of the said Act stipulates that all Suits or proceedings between a Licensor and Licensee and all landlords or tenants or for recovery of possession of immovable property and license fee or rent except to those to which other Acts apply shall lie in the Small Causes Court. He would submit that the Court of Small Causes which have the jurisdiction to entertain all such Suits and proceedings between a Licensor and Licensee. He has taken me through the entire Leave and License Agreement and would contend that at all places in the said document, parties have been described as Licensor and Licensee. In that view of the matter, he would submit that even assuming that the Suit plot is an open plot, depending on the particulars of claim which are based on the licence fee payable, the suit has to be filed in the Court of Small Causes under Section 41(1) of the said Act. He would rely upon the following two decisions in support of his above contention viz, (i) Arun Subhedar Vs. Shyamacharan Bhagwatiprasad Tiwari 7 , and (ii) Eknath Vithal Ogale 8 and submit that even if it is an admitted position that Rent Act would not apply in the case of an open / space, since the entire Suit claim is with regard to dispute between a licensor and licensee and based on 7 2006 MhLJ 92 8 AIR 1995 SC 1102 recovery of license fee, it would lie within the exclusive jurisdiction of the Court of Small Causes only. He would rely on the provisions of sub section 1 of Section 41 and contend that what is stated therein if read would mean that for applicability of the said provisions the following conditions must be fulfilled before ousting the jurisdiction of the Civil Court. That it must be a Suit or proceedings between a Licensor or Licensee or between a landlord and tenant, that such Suit must relate to recovery of possession of any property situated in Greater Bombay or relating to recovery of license fee or charges of rent under the License Agreement. He would submit that even though Rent Act did not apply to an open space, disputes relating to possession of open space in Greater Mumbai and more specifically relating to recovery of license fee in respect of open space situated in Greater Mumbai are amenable and subject to the jurisdiction of the Small Causes Court only.

5.3. He would next draw my attention to paragraph No.26 of the Suit plaint wherein reference is made to the words “additional license fee”, under the guise of license, on a pro rata basis, and then draw my attention to paragraph No.36 of the Suit plaint wherein Plaintiffs have set out their claim to be that of license fee for two different periods and additional license fee for the excess area used to justify their claim. He would fairly submit that out of the five claims sought by Plaintiffs, two claims namely; claim No.3 i.e. costs for removal of RCC column and removal of debris and leveling of the Suit plot of Rs.8,50,000/- and claim No.4 i.e. costs for construction of damaged compound wall on the west side of the Suit plot and re-erecting the main gate can undoubtedly be the subject matter of a Suit to be filed in a Civil Court, but in so far as the principal claims of recovery of license fee for the periods as stated in the particulars of claim for the excess area used are concerned, all those claims are towards recovery of money on the basis of license fee stipulated in the Leave and License Agreement executed between parties. He would submit that on a holistic reading of the entire Suit plaint, it is clear that Plaintiffs have admitted that there was a license in favour of Defendant and their claim is based on the license agreement itself. He would highlight that the principal claims of Plaintiffs are in respect of recovery of license fee for the period 18.09.2009 to 17.10.2009 for Rs.43,150/- and for the period 18.10.2009 to 18.04.2010 for Rs.2,62,500/- based on the Agreement and even the monetary claim of damages of Rs.1,05,00,000/- as additional license fee is for use of excess area based upon a multiplication of the license fee stipulated in the agreement. He would therefore submit that any Suit relating to recovery of license fee based on a gratuitous license or any license pertaining to premises would have to be filed in the Small Causes Court. He would submit that the word license is not defined in the said Act and its definition under Section 52 of the Indian Easement Act squarely covers the relationship between parties in the present case which is the admitted position of a licensor and licensee. He would submit that assuming that Defendant utilized any excess area over and above the Suit plot area granted under the license, the Plaintiffs’ claim for additional license fee is also computed with respect to the license fee stated in the Agreement itself for the alleged excess area use and therefore any such claim with respect to additional license fee for the excess area used would also clearly lie within the sole jurisdiction of the Court of Small Causes and not the Civil Court. He would submit that claim of Plaintiffs for recovery of damages is a willful misrepresentation of the claim as set out in the Suit plaint. He would submit that Plaintiffs decided to take advantage of the bar under Section 19 of the said Act for claiming damages in a Civil Court, but the averments in the plaint are in fact to the contrary. He would draw my attention to the averments made in paragraph No.36 of the Suit plaint and argue that all claims of Plaintiffs are computed on the basis of license fee stipulated in the license agreement itself. He would once again fairly submit that save and except the twin claims for Rs.8,50,000/- for removal of debris and leveling the Suit plot and for Rs.3,50,000/- for construction of the damaged compound wall and gate, the rest of the three principal claims are clearly not amenable to the jurisdiction of this Court.

5.4. He would rely upon the decision of the Division Bench of this Court in the case of Nagin Mansukhlal Dogli Vs. Haribhai Manibhai Patel 9 to contend that in paragraph Nos.20 and 21 therein this Hon’ble Court has repelled the argument that a dispute for possession between licensor and licensee would not be amenable to the jurisdiction of the Small Causes Court because there is also a claim for damages. He would submit that the same principle will apply to the present Suit wherein Plaintiffs have made claim for damages in addition to recovery of license fee which is solely based on the license fee itself. He has also attempted to distinguish the judgment referred to and relied upon by Plaintiffs in the cases of Brainvisa Technoliges Pvt. Ltd. Vs. Subhash Gaikwad (HUF) 10 and Bafna Motors Private Limited Vs. Amanulla Khan 11 and would contend that the facts of those cases related to recovery of security deposit and those decisions did not emanate from a dispute of recovery of license fee or charges of rent. Hence in those cases, the Court held that there was no claim for possession or license fee and hence the Court of Small Causes had no jurisdiction. In those cases recovery was for a monetary claim only which was crystallised. He would submit that in the present case, the principal claim of Plaintiffs clearly arises out of and from the Leave and License Agreement and is for recovery of license fee and additional license fee only, except the two additional claims for removal of debris and compound wall repair. In that view of the matter the Civil Court’s jurisdiction is ousted for adjudication of such claims and it is subject to 9 AIR 1980 Bom 123 10 2012 SCC Online Bom 2003 : (2013) 7 Bom CR 540 11 2022 SCC Online Bom 994 the exclusive jurisdiction of the Court of Small Causes only. He would further submit that under Section 19 of the said Act there is no bar of jurisdiction on the Small Causes Court for granting damages also.

5.5. In so far as claim Nos.3 and 4 are concerned, he would submit that they are in relation to the licensed premises and licence agreement and therefore irrespective of its value, it is only the Small Causes Court which will have the exclusive jurisdiction to receive and adjudicate these claims.

5.6. In support of the above submissions and propositions, he has referred to and relied upon the following decisions:-

(i) Arun Subhedar Vs. Shyamacharan Bhagwatiprasad Tiwari (supra);

(ii) Nagin Mansukhlal Dogli Vs. Haribhai Manibhai Patel (supra);

(iii) Prabhudas Damodar Kotecha and Ors. Vs. Manhabalal Jaram Damodar and Ors.

5.7. Mr. Patil, would fairly concede that the Plaintiffs have prayed for mixed reliefs in the present Suit proceedings. He has attention drawn my attention to prayer clause ‘a’ which reads as under:-

“a) That the Defendant be ordered and decreed to pay to the Plaintiff an amount of Rs.1,20,06,250/- (Rupees One Crore Twenty Lakhs Six Thousand Two Hundred and Fifty Only) together with interest thereon @ 24% from the date of filing of the suit till payment and/or realisation as more particularly set out in Particulars of Claim at EXHIBIT – P hereto.”

5.8. He would submit that in prayer clause ‘a’ of Suit plaint, Plaintiffs have prayed for recovery of an amount of Rs.1,20,06,250/-. He would draw my attention to Exhibit – P - at page No.82 of the Suit and would submit that out of the five claims claimed by Plaintiffs, claim at item Nos.1, 2 and 5 pertain to recovery of amount based on license fee, additional license fee and therefore such claims emanating from the Leave and License Agreement executed between parties and has to be tried by the Court of Small Causes only. He would submit that claim at item Nos.3 and 4 however also emanate from the license agreement which is the Suit agreement and pertains to the Suit plot and the larger property belonging to Plaintiffs and thus even those claims ought to be agitated and determined before the Small Causes Court alongwith the principal claims for recovery of license fee / additional license fee.

5.9. Mr. Patil would fairly concede that the Suit is maintainable in this Court only for seeking recovery of amounts against claim Nos.3 and 4 as per the particulars of claim as jurisdiction of the Civil Court is not ousted for recovery of these money claims. However, he would submit that in so far as the other three principal claims are concerned, it is only the Small Causes Court which has jurisdiction to decide the same. According to Plaintiffs, Suit is maintainable in this Court for recovery of all claims as prayed for by the Plaintiffs.

6. Both parties have led evidence on all issues which have been framed by this Court. Hence, by consent of both the parties, I have heard the final arguments and considered the evidence on all issues while making it clear that subject to the decision on the issue of jurisdiction, each of the other issues shall be considered accordingly by me.

7. At the outset, I intend to adjudicate issue No.1 itself as it would affect the decision of the other issues accordingly. It is seen that it is an undisputed position that the Suit agreement between parties is a Leave and License Agreement allowing the Defendant to enter upon the Suit plot for setting up the GBT. The said agreement is at Exhibit “E” - page No.40 of the plaint, it is marked in evidence as Exhibit “P15”. Both parties have accepted the same. Perusal of this agreement shows that it is entered into between Plaintiff No.1 being the ‘Licensor’ and Defendant being the ‘Licensee’. Recital D therein states that the licensee to take on leave and license from the licensor area approximately 250 square feet out of Survey No.32, CTS No.158 (which is the larger property belonging to the Plaintiffs) together to use or common areas and facilities etc. Recital F states that for grant the license for the premises licensor does not need to obtain from any authority any prior approval or sanction. In this context, recital B is required to be looked in to. Recital B states that the licensee seeks to obtain the premises from the licensor on license basis for the purpose of establishing, constructing, installing, maintaining and storing various kinds of Telecom Equipment / Cell Site / Appliances / Towers and other assets to provide the same on license / rent / sale basis to various Telecom Service Providers in furtherance to its business on the basis that licensee is a registered infrastructure provider by virtue of registration granted by Department of Telecommunications, Ministry of Communications and IT, Government of India. Clause 1 of the agreement states that the licensors have granted permission to licensee on leave and license basis to enter into or over the licensed premises, to use the same for the purposes mentioned in the agreement and subject to the terms and conditions therein. The tenure of the term is stated in clause 2.1 and license fee payable is stipulated in clause 3.1. In clause No.3.4 it is provided that at the expiry of every three years during the tenure of 10 years, license fee shall be increased by 10% and table to that effect has been provided in the agreement. In clause 5.18 it is stated that licensor shall provide all that is necessary to facilitate the licensee in obtaining all clearances / certificates / permissions / sanctions as may be required from all statutory government / municipal authorities from time to time. In clause 5.39 it is stated that party shall be liable to the other party for failure to perform its obligations due to the occurrence of any event beyond the 27 ::: Uploaded on - 22/07/2024 ::: Downloaded on - 24/07/2024 09:31:16 ::: Suit No.1248.10.doc control of such party and affecting its performance including, without limitation, governmental regulations, order etc. In so far as termination of the Leave and License Agreement is concerned, clause 3.3 of the agreement and clause 11 governs such a condition. In clause 3.3 it is stated that if licensee fails to pay the license fee for three months then the licensor shall be entitled to, after providing a notice of 30 days and only if the dues are still unpaid, terminate the agreement and determine the license as cancelled. Clause 11 provides for termination by either parties at any time for any reason whatsoever after giving 6 months notice to the other party. Clause 11.2 states that if the licensee has caused major damages to the premises then the licensee shall take necessary steps to bring the licensed premised to its original shape subject to normal wear and tear. Clause 12 of the agreement governs and describes the relationship between parties to be that of a licensor and licensee in respect of the licensed premises and that the Leave and License Agreement is a mere license in favour of the licensee and it categorically states that the agreement shall not be construed as an agreement of lease and the intention of the parties is only to create a license.

8. After perusal of the recitals and clauses of the Leave and License Agreement, it is not possible to accept the submissions advanced by Mr. Naidu that the Suit agreement is to be construed as an agreement in the nature of grant of the Suit plot to the Defendant. By no stretch of imagination can it be considered as a grant or a lease of the Suit property to Defendant. In this regard, provisions of Section 41 of the said Act are required to be considered and applied. Section 41 of the said Act reads thus:-

“41. Suits or Proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie in Small Cause Court.—

(1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefore, irrespective of the value of the subject matter of such suits or proceedings.

9. Perusal on the above provision reveals that the Small Causes Court shall have exclusive jurisdiction for recovery of license fee or charges relating to any immovable property in Greater Bombay. In this context, when the particulars of claim which are at Exhibit “P” - page No.82 of the Suit plaint are seen, it is seen that the principal claims stipulated therein, namely claim Nos. ‘1’, ‘2’ and ‘5’ pertain to claim of license fee under the Leave and License Agreement. What is essential is to look at is the real cause of action and that is the license agreement and the license fee stated therein leading to the principal claims. There is no room for doubt in the mind that the dispute raised is with respect to the claim on account of the Leave and License Agreement between the Licensors and Licensee for license fee and the principal claims are the license fee itself. By giving the colour and nomenclature of damages the fact that the principal claims of the Plaintiffs are on the basis of license fee cannot be ignored. Hence, in view of the specific provisions of Section 41 of the said Act, I am clearly of the opinion that even though it is an admitted position that the Rent Control Act will not apply to an open plot of land which may be the case herein, but in view of the specific admitted relationship by the Plaintiffs of licensor and licensee under the Leave and License Agreement and the claim of the Plaintiffs clearly being for recovery of license fee or charges relating to the same, such a dispute is amenable to the jurisdiction of the Court of Small Causes only. This is not a pure money claim which has no nexus with the license fee. Claim No. ‘5’ prayed for by Plaintiffs in the particulars of claim for Rs.1,05,00,000/- is nothing but claim for license fee for 13 months for the period 18.09.2008 to 17.10.2009 and the six months notice period from 18.10.2009 onwards. All claims, namely claim Nos. ‘1’, ‘2’ and ‘5’ are based on the license fee agreed between parties under the agreement. Hence, to construe that the claim is for damages and the jurisdiction of the Small Causes Court is ousted cannot be countenanced. The citations relied upon by Plaintiffs determining that Suit for security deposit in the case of the Leave and License Agreement shall lie in the Civil Court cannot come to the aid and assistance of Plaintiffs. Though Plaintiffs have argued that the security deposit is a multiple of the license fee and therefore this Court should accept that position and determine the issue No.1 affirmatively, I am afraid I am not inclined to accept such a submission made by Plaintiffs in this regard. It is clearly seen in the present case that the claim primarily arises out of the Leave and License Agreement and all three claims, namely claim Nos. ‘1’, ‘2’ and ‘5’ are for recovery of license fee only for different periods.

10. In view of the observations and findings and answer to issue No.1 being in the negative and me holding that in so far as claim Nos.‘1’, ‘2’ and ‘5’ are concerned, I am inclined to accept the case of Defendant and hold that the same are maintainable only before the Court of Small Causes and not in a Civil Court. The particulars of claim as prayed for by Plaintiffs for these three claims cannot be decided by this Court. I hold that the jurisdiction to decide the said claims would lie before the Court of Small Causes only.

11. In so far as claim Nos. ‘3’ and ‘4’ are concerned, it is seen that the said claims are purely in the nature of damages and thus they can be maintained in the Civil Court. Claim No.4 is recovery of a sum of Rs.3,50,000/- as damages to erect the stone rubble masonry foundation and compound wall to secure the Suit plot which was damaged by Defendant. It is Plaintiffs’ case that Defendant was allowed by Plaintiffs to enter with heavy machinery for excavation of the Suit plot. However, after the Leave and License Agreement was terminated by Defendant the suit plot was abandoned by Defendant without restoring it to its original condition. In that process the entry gate and compound wall near the entry gate to the larger property was entirely damaged. Plaintiffs were therefore compelled to reconstruct the compound wall on the west side of the Suit plot to secure its property and also re-erect the main gate thereon.

12. Since I have come to the definite conclusion that the principal claims of the Plaintiffs namely claim Nos. ‘1’, ‘2’ and ‘5’ are exclusively triable by the Court of Small Causes and not by the Civil Court, the Suit plaint is returned back to the Plaintiffs to be presented before the Court of Small Causes for adjudication of the 3 principal claims.

13. In that view of the matter, in so far as the claim Nos. ‘3’ and ‘4’ are concerned, though the claims are to the extent of damages and costs incurred by the Plaintiffs qua the Suit property due to termination of the Licence Agreement between the parties, they qualify as ancillary claims to the principal claims emanating from the Licence Agreement. Though independently these claims may be triable by the Civil Court, however since they are emanating from the same cause of action as that of the 3 principal claims, the same are also relegated for a decision and adjudication to the Court of Small Causes alongwith the 3 principal claims prayed for by the Plaintiffs.

14. In view of my above observations and findings, issue No.1 is answered in the negative. It is held that this Court will not have jurisdiction to determine the Suit claims prayed for by Plaintiffs in view of the provisions of Section 41 of the said Act and the jurisdiction to determine the same shall lie exclusively with the Court of Small Causes. Once it is so held, the Suit plaint is returned to the Plaintiffs for presenting the same to the Court of Small Causes for adjudication and decision on all issues in accordance with law.

15. With the above observations, Suit is disposed.

16. In view of the above decision, Counter Claim filed by the Defendant is also directed to be tried by the Court of Small Causes alongwith the Suit plaint as it emanates from the same cause of action in so far as the principal claims of the Plaintiffs are concerned on the basis of the Licence Agreement between the parties.

17. Counter Claim is accordingly disposed.