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TMI Blog2021 (5) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... lled upon to discharge the liability under the instruments/contract, in terms of which it has entered into the demised premises. The question of bar under Order II Rule 2 to the tenability of the instant suit would warrant adjudication after providing an opportunity of hearing to the parties. Undoubtedly, the expiry of term of lease, as alleged by the plaintiff, constitutes the substratum of the plaintiff s case. The question as to whether the claim for damages, as prayed for in the instant suit, is based on cause of action distinct from the cause of action on the basis of which the suit for recovery of possession of the suit premises has been instituted would, thus, arise for consideration. However, for the purpose of determination of the prayer in the instant Notice of motion, especially, the prayer for direction to pay accumulated Municipal dues and the Municipal Taxes and charges, as they fall due, the challenge on the count of the bar under Order II Rule 2, may not apply with equal force. The basis of the alleged liability is the instruments under which the predecessor-in-interest of the defendants had entered upon the suit premises The term of property has wide amplit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icipal Corporation, in the intervening period of two months, costs and consequences thereof shall also be borne by the defendants No.1 to 3. - NOTICE OF MOTION NO. 1666 OF 2012 IN SUIT No. 2120 of 2008 - - - Dated:- 6-4-2021 - N.J. JAMADAR, J. Mr. Chirag Balsara a/w Hude Diamondwala i/b Diamondwala and Co. for applicant/plaintiff Mr. A.C. Singh, Addl. Solicitor General of India a/w. Mr. Aditya Thakkar and Mr. Shyam V. Walve for defendants ORAL JUDGMENT : (Through V.C. at Aurangabad) Notice of Motion under No. 1666 of 2012 in Suit No. 2120 of 2012 is taken out by the plaintiff seeking, inter-alia, the following reliefs: (a) That pending the hearing and final disposal of the suit the Defendants be ordered and directed to make the entire payment of outstanding dues of Municipal dues to MCGM ₹ 1,67,20,038/- up to 31.3.2012 and further municipal taxes. (b) That pending the hearing and final disposal of the suit, the Defendants be ordered and directed to pay to the Municipal Corporation an amount of ₹ 5,68,798/- (Rupees five lakhs sixty eight thousand seven hundred ninety eight only) every six months towards the Municipal taxes subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s commencing from 30th April 1982 with an option to the lessee to renew the lease for a further period of ten years. Thus, the right of renewal was restricted to one term of ten years only. 5. In the meanwhile, Swastik India Private Limited through its Director, professed to transfer the leasehold interest in the suit premises in favour of one Ashok K. Kothari. Form No. 37-I under the Income Tax Act, 1961 was duly filed, in accordance with the then governing provisions. The appropriate authority passed an order on 27th of June 1997 for pre-emptive purchase for a sum of Rs. four crores, which was the apparent consideration and, thus, the Government exercised an option to purchase the suit premises for Rs. four crores under Section 269 UD(1) of the Income Tax Act, 1961. The possession of the suit premises was taken by the appropriate authority by passing a receipt dated 7th July 1997. 6. Dispute arose over the said acquisition by invoking the provisions contained in Section 269 UD(1) of the Income Tax Act, 1961. A series of proceedings followed. Mr. Atmaram Alwani and others instituted a writ petition, being Writ Petition No. 1887 of 1997, against the respondents seeking mandam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te civil remedy. 10. The respondents-defendants issued an auction notice dated 3rd of September 2007 to sell the suit premises. The plaintiff challenged the said action by filing Writ Petition No. 2324 of 2007. A Division Bench of this Court, by judgment and order dated 6th of February 2008, was persuaded to allow the petition holding that the defendants had not acquired ownership over the suit premises. The defendants entered into the shoes of Swastik India Private Limited, the respondent No.4 in the said petition. 11. The observations of this Court in paragraph No.3 of the said judgment bear upon the controversy at hand as well. They read as under: 3. On perusing the record and in the aforesaid circumstances, we find that the petitioners have clearly acquired right of ownership in respect of the suit premises. When this right was acquired, Swastik India (P) Ltd. Who is respondent no.4 in this petition, was the sub-lessee. The rights of Swastik India (P) Ltd., were modified by the indenture of modification dated 19.2.1986. The order under Section 269 UD related to the acquisition of the shareholding of Swastik India (P) Ltd. and thus the Union of India stands in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to occupy the suit premises and the said alleged unlawful occupation of the defendants resulted in serious infringement of the possessory and proprietary rights of the plaintiff and, thus, the suit for damages. 15. In the instant suit, the plaintiff has taken out this Notice of Motion. It is premised on the facts that under the terms of the indenture of lease executed by predecessor-in-interest of the defendants, namely, Swastik India Private Limited, it was the liability of the lessee to pay all Municipal taxes and charges. The defendants are, thus, liable to pay the Municipal taxes and charges which had accumulated to ₹ 1,67,20,038/- up to 31st March 2012, and the taxes and charges as they become due. The relief of compensation was also sought on the ground that the defendants have no subsisting right to continue to occupy the suit premises. 16. Initially, an affidavit-in-reply was filed on behalf of the defendants-respondents. The assertions in the Notice of Motion were contested. The substance of the resistance put-forth by the defendants/respondents was that the reliefs sought in the Notice of Motion were unworthy of being entertained as the reliefs sought were cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-in-reply. It was asserted that in view of the withdrawal of the amount by Alwanis pursuant to the order passed by the Division Bench in Writ Petition No. 1887 of 1997 dated 23rd October 2002, the defendants have stepped into the shoes of Alwanis and that the defendants are in possession of the suit premises in that capacity. Paragraph No.4 of the said affidavit reads as under: 4. I, therefore, submit that because of withdrawal of the said amount by Alwanis from the office of this Honourable Court the defendants have stepped into the shoes of Alwanis and hence defendants are in possession of the property. I say that, as per my understanding, similar observations were made by this Hon ble Court in Writ Petition No. 3154 of 2005 in its order dated 21.03.2006 filed by the plaintiffs herein. Hereto annexed and marked as EXHIBIT 1 is a copy of the order dated 21.03.2006 in Writ Petition No. 3154 of 2005. 19. The aforesaid background facts and history of the litigation have been noted elaborately, on purpose. The question as to whether the plaintiff is entitled to the reliefs in the Notice of Motion, especially as regards a direction to the defendants to pay the Municipal taxe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the plaintiff for recovery of possession of the suit premises and for compensation and mesne profits also, Mr. Singh submitted that the instant suit is clearly barred by the provisions contained in Order II Rule 2 and Order II Rule 3 of the Code. The plaintiff could have very well sought the relief of damages in the said suit. Cause of action for both the suits is one and the same. Therefore, as the instant suit is barred by the provisions of Order II Rule 2 and Rule 3, no interim relief can be granted as it is trite that interim relief is to be granted in aid of final relief, canvassed Mr. Singh. It was further submitted that the plaintiff cannot take advantage of the observations made by this Court in various proceedings. It is for the plaintiff to come to the Court with a positive case. In the case at hand, the plaintiff does not acknowledge the status of the defendants as lessees of the suit premises and, yet, insists upon payment of municipal taxes and cess by the defendants. In view of the contradictory stands as regards status of the defendants, the plaintiff is not entitled to any of the reliefs, urged Mr. Singh. Lastly, it was submitted that in any event, the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues, duties, charges and outgoing whatsoever imposed by any public authority whether Government or Municipal Corporation of Greater Bombay including water charges allocable and payable in respect of the demised premises at present Municipal rates and taxes comes to ₹ 34,849/- per year and in the event of any rates taxes assessment or imposition being made or levied jointly upon the Demised Premises or any part thereof and the other premises of the Lessor or any part thereof. They, the Lessees shall pay to the Lessor their one proportion thereof as may be determined by the Lessor as allocable and payable in respect of the demised Premises. 24. Under the indenture of modification dated 19th of February 1986, the term of lease, as originally agreed under indenture of sub-lease dated 30th April 1982, came to be modified to the effect that the lessee would hold lease for a period of ten years with only one option of renewal for a further period of ten years. Clause 2(c) of the sub-lease, extracted above, came to be substituted by the following: To pay all expenses and future rates, cess assessments, dues, duties, charges and outgoings whatsoever imposed by public authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the former suit. In other words, to invoke the bar enunciated under Order II Rule 2, it has to be shown that cause of action on which subsequent claim is founded, had arisen to the plaintiff when enforcement of the first claim was sought. Resultantly, an examination of the pleadings in the previous suit and the suit in which the objection is raised and ascertainment of the cause of action for the suits becomes necessary. 29. A profitable reference in this context can be made to a judgment of the Supreme Court in the case of Alka Gupta Vs. Narender Kumar Gupta, 2010(10) Supreme Court Cases 141 , wherein the object behind the bar incorporated in Order II Rule 2 and the pre-requisites for sustaining the objection on the said count were postulated as under: 12 ... The object of Order 2 Rule 2 of the Code is twofold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecially, the prayer for direction to pay accumulated Municipal dues and the Municipal Taxes and charges, as they fall due, the challenge on the count of the bar under Order II Rule 2, may not apply with equal force. The basis of the alleged liability is the instruments under which the predecessor-in-interest of the defendants had entered upon the suit premises. 31. At this stage, Court may not be justified in dealing with the prayer in clause (c), of payment compensation, and clause (d), of immediate delivery of possession of the suit premises, as the entitlement of the plaintiff to damages is a matter for trial in the instant suit and the entitlement to possession of the suit premises is to be adjudicated upon in Suit No. L-164/2014. 32. However, so far as the prayer for direction for payment of the arrears of Municipal dues and the Municipal taxes and cess, as they fall due, there does not seem to be any impediment. As indicated above, the liability of the defendants to clear the municipal taxes and other Government charges emanates from the indenture of sub-lease and indenture of modification. Indisputably, the suit premises is in the possession of the defendants. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision, it becomes evident that the term of property has wide amplitude. It is not restricted to lands and buildings but may subsume within its fold all forms of property. There is no warrant for restricting it to the property in which the Union of India has absolute ownership right and to assume that it does not cover the interest short of absolute ownership. 39. In the case of The Corporation of Calcutta Vs. The Governors of St. Thomas School, Calcutta, AIR 1949 Federal Court 121, it was held that: 10. Section 154 raises two questions for determination when an exemption from liability to tax is claimed: (i) whether tax is claimed in respect of property; and (ii) whether such property is vested in Government : The word property is used in the context without any limitation and therefore should bear its normal meaning. Interpreted in that way it will embrace every kind of property. As observed by Langdale, M.R. in Jones V. Skinner, (1835) 5 L.J. Ch. 87 at page 90: (42 R.R.274): Property is the generic term for all that a person has dominion over. It is the most comprehensive of all terms which could be used, inasmuch as it is indicativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the suit. 43. At this stage, the Court is confronted with the issue of Municipal Corporation proceeding with coercive action to recover its dues. As observed above, in the absence of Municipal Corporation as a party to the instant proceeding, no restraint can be ordered against the Municipal Corporation. Even otherwise, it is well recognized that a Municipal Corporation cannot be restrained from levying and collecting taxes by lightly passing interim orders. 44. The observations of the Supreme Court in the case of Siliguri Municipality and others Vs. Amalendu Das and others, 1984(2) Supreme Court Cases 436 are instructive and thus extracted below: 3. It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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