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TMI Blog2013 (5) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... nt possession to the plaintiff; (ii) the defendant further agreed that the plaintiff shall have first option to purchase the entire said property; (iii) that on the assurances and representations of the defendant, the plaintiff after entering into possession made substantial improvements in the suit premises and spent several lacs of rupees; the plaintiff changed the entire flooring and installed tiles on the flooring; (iv) the plaintiff started running its export division office from the said first floor with the express consent and permission of the defendant Company that the plaintiff shall have permissive use and possession and first option to purchase the entire property; (v) around June, 2010 the defendant created hindrance and obstructed the employees of the plaintiff from accessing the terrace where the water tanks were situated; the plaintiff filed a Police complaint against the defendant on 4th June, 2010 and with the intervention of the Police the plaintiff was permitted access to the terrace; that on 3rd August, 2010 the defendant confirmed that the said first floor is under the possession of Shri Motilal Bothra and Shri M.K. Jalan, Chairman of the plaintiff Company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Sale Deed executed by the defendant no. 1 in favour of the defendant no. 2 and for other ancillary reliefs and to incorporate in the plaint pleas in support of the said additional reliefs. Vide order dated 16th May, 2013, without prejudice to the pleas of the defendant no. 2, the said amendment was allowed. 3. The Court Commissioner has filed a report to the effect, that the first floor had no door; construction material (broken) such as used but dismantle wooden boards and bricks, some certificates/documents of the plaintiff, AC Unit, wall cabinets, wall cupboard, pile of broken/used bricks and other miscellaneous office items were found lying on the first floor with both parties claiming the ownership thereof; it has been reported that the entire first floor is in a broken state and the key of the main door of the building was in possession of the defendant no. 2 and the entry to the first floor can only be through the said main door. 4. The plaintiff has filed IA No. 20198/2011 for interim relief (i) restraining the defendant no. 2 from interfering with the access of the plaintiff and its employees to the first floor of the property and from disturbing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 in favour of the defendant no. 2 on 4th August, 2011. 7. The senior counsel for the plaintiff and the counsel for the defendant no. 2 have been heard on all the three applications aforesaid. The senior counsel for the defendant no. 1 has chosen not to address any arguments. 8. It is not in dispute that as of today the control of the entire property is with the defendant no. 2 and the plaintiff is not even able to enter the property. It was as such enquired from the senior counsel for the plaintiff as to why the property should not be permitted to be put to use during the pendency of this suit by allowing letting thereof for a period of not more than three years and after approval of the Lease Deed by this Court and with a provision being made for the rent so earned by the property, all subject to the final outcome of the suit. 9. The senior counsel for the plaintiff contended that the plaintiff was in settled possession of the property and has been illegally deprived of the use thereof and has sought the interim relief of restraining defendants from obstructing the use by the plaintiff of the first floor of the property. It is contended that if the property is ordered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recovery compensation from the grantor. It was enquired whether not the aforesaid is indicative of a licensee once evicted from the licensed premises having the right only of recovery of compensation and having no right of re-possession or restoration of use. 14. On request of the counsels time was granted to enable the counsels to consider the aforesaid provision. 15. The senior counsel for the plaintiff after studying the matter contended that:- (i). that the relief provided of compensation is only against the grantor of the license and grantor in the present case was the defendant no. 1 and thus the limitation even if any in Section 64 would not be available against the defendant no. 2 who is the purchaser of the property from the defendant no. 1; (ii). that Section 64 cannot be read as limiting the right only to that of compensation. Attention in this regard is invited to M.S. Baliga Vs. Mangalore City Corporation AIR 1998 Karnataka 76 holding that Section 64 of the Easements Act does not take away the remedy of restoration of possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures and goods of the plaintiff lying therein and by ripping apart the entire flooring. The same was demonstrated from the photographs taken at the time of Local Commission. It was contended that the defendant no. 2 who has indulged in such vandalism, in equity cannot be allowed to reap the benefits of the illegalities committed by it and the ends of justice require the plaintiff to be put back into possession of the first floor and/or being permitted the use thereof. It was yet further contended that the plaintiff had also carried out the works of permanent nature in the said first floor and the license in its favour was thus irrevocable under Section 60(b) of the Easements Act. Reliance in this regard was placed on Mohammad Abdul Jamil Vs. Manzoor Ahmad AIR 1932 All. 572. It was further urged that the plaintiff also has a prima facie case on the basis of the Agreement to Sell by the defendant no. 1 in its favour and for which reason also it is in the interest of justice that the plaintiff be restored the use of the first floor. From the written statement/replies of the defendant no. 1 it is contended that the defendant no. 1 has admitted to the plaintiff being in use of the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant no. 2 has thus stepped into the shoes of the grantor and once the property has been transferred it cannot be said that the rights of the licensee are against the erstwhile owner of the property only. 22. I am also unable to hold that the plaintiff has not been dispossessed. In the context of a license, dispossession/eviction has to be necessarily deprivation of use of the licensed premises in as much as the licensee in any case has no right to the property and possession is but a facet of one such right to the property and the only right of a licensee is to use of the premises. More than one and a half years have elapsed since the plaintiff has been so deprived of the premises. The state of the first floor as apparent from the photographs is such that the plaintiff even if permitted access to the property cannot start using the same. Considerable investment will again have to be made on the first floor of the property to make the same habitable. At this interim stage it is not very clear as to till when the plaintiff was in use of the property; though the senior counsel for the plaintiff has invited attention to telephone bills and electricity bills showing use of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property and if Mr. Jalan wants to buy the property at the agreed market price, he will have the first option on the same. Mr. K.L. Bothra's (representative of Mr. Vinay Maloo) consent will be taken while determining the market price. 30% of the sale price will be given to Mr. M.K. Jalan (as mutually agreed between Mr. M.K. Jalan and Mr. Moti Lal Bothra), which will be kept in Escrow by Mr. M.K. Jalan for overall settlement of his account. Mr. Vinay Maloo confirms that this understanding is irrevocable. Date: 3rd August, 2010. 27. The counsel for the defendant no. 2 has rightly argued that there is no mention even of the price and the plaintiff and the defendant no. 1 cannot even be said to be parties to the said Agreement, and further that without any agreement as to price, the same cannot be an enforceable Agreement. 28. For all the aforesaid reasons I am of the view that the request of the defendant no. 2, while not opposing the existing interim orders to be made absolute till the decision of the suit, seeking permission for letting out of the entire property is a reasonable one. No purpose would be served in allowing the property to lie unused during the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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