ORDINARY ORIGINAL CIVIL JURISDICTION v. Sudhir Nagpal, Director of Hotel

Order

ORAL ORDER: (PER D.B.BHOSALE,J.) (PER D.B.BHOSALE,J.) ORAL ORDER: (PER D.B.BHOSALE,J.)

1. This Notice of Motion is taken out by the plaintiff seeking directions to the defendants to forthwith hand over and restore to the plaintiff the vacant and peaceful possession of the premises being flat no.209, Olympus Apartments, Altamound Road, Mumbai -2- (for short, "the suit premises") and, in the alternative, for the appointment of the Court Receiver, High Court, Bombay as Receiver for the suit premises and put the plaintiff in possession thereof as an agent without royalty or compensation. The plaintiff is further seeking a direction to the defendants to restore to the plaintiff all movable furniture/articles taken from the suit premises. The plaintiff has also prayed for the appointment of a Commissioner to inspect and take an inventory of the suit premises and for an injunction restraining the defendants from in any manner dealing with, disposing of, alienating, encumbering or creating third party rights of any nature whatsoever in respect of the suit premises. The suit is instituted under section 6 of the Specific Reliefs Act, 1963 alleging forcible dispossession from the suit premises between 14.3.2008 and 17.3.2008 when the plaintiff was out of India.

2. The relevant factual matrix, as disclosed from the material placed before this Court and the submissions, that are advanced by the learned senior counsel for the parties , to the extent it is necessary for deciding this motion, is as under. Defendant no.1 and the plaintiff are husband and wife, who got married on 1.9.1987. Till 1993, they resided with the parents -3- of defendant no.1. Defendant no.1 is a Director of Piem Hotels Limited (for short, "Piem"). During the period between 1993 and 1995, they were staying in Hotel President. In 1995 the suit premises was purchased by Piem as Director’s accommodation for defendant no.1. According to the plaintiff, she and defendant no.1 resided at the suit premises from 1996 onwards till she was dispossessed in March, 2008.

2.1 On 1.4.2005, defendant no.1 was appointed as the IT Advisor of defendant no.2 - Indian Hotels Co.Ltd and it was then continued vide letter dated 7.3.2007. His appointment was thereafter confirmed by defendant no.2 vide letter dated 24.8.2005. Subsequently, Piem granted licence of the suit premises to defendant no.2 by entering into a Leave and Licence Agreement for the period from 1.8.2005 till 31.7.2007. According to defendant no.2, this agreement was thereafter renewed and it was subsisting till the possession of the suit premises was surrendered by defendant no.1 to them on

17.3.2008. After entering into the Leave and License Agreement, defendant no.2 had allotted the suit premises to defendant no.1 vide their letter dated

20.10.2005. A Service Occupancy agreement was also entered into between the defendants on 20.12.2005 and since then it appears that defendant no.1 continued to -4- be in possession of the suit premises as a licensee.

2.2 The plaintiff and defendant no.1 stayed in the suit premises till August 2006. On 12.8.2006 defendant no.1 left the suit premises and started residing at Taj President at Cuffe Parade and since then, according to the plaintiff, she was in exclusive possession of the suit premises till she was illegally dispossessed.

2.3 In December,2006 defendant no.1 had filed M.J.Petition No.A 210 OF 2007 for annulment of the marriage before the Family Court at Bandra, Mumbai. The said petition, however, came to be disposed of by the Family Court for want of jurisdiction.

2.4 According to the plaintiff, some time in November-December 2006, upon the advice of defendant no.1 she had changed the front door locks of the suit premises since it was found damaged. In January and February, 2008 there were complaints of water leakage from the suit premises which, according to the defendants, were not properly attended to and that the suit premises was also not properly maintained by the plaintiff.

2.5 On 13.3.2008 the plaintiff left on a business -5- trip to Germany and Singapore. On 14.3.2008, defendant no.2 issued a purported termination letter of the service occupancy agreement to defendant no.1. Some time between 14.3.2008 and 17.3.2008 defendant no.1 allegedly entered the suit premises, purportedly through the side door, and cleared out a total of 133 cartons of personal belongings of the plaintiff and stored the same in a godown at Vashi. Out of the 133 cartons defendant no.1 claims that 79 were of the plaintiff and the remainder were his belongings. This bifurcation has not been disputed by the plaintiff. After vacating the suit premises, defendant no.1 handed it over to defendant no.2 on 17.3.2008.

2.6 Defendant no.1 thereafter on 18.3.2008 informed the plaintiff by an e-mail about the alleged termination of the service occupancy agreement and handing over of the suit premises to defendant no.2 after clearing out all the belongings in the suit premises. The plaintiff claims that she saw the e-mail on 19.3.2008 when she first came to know of an alleged agreement of Leave and License and her forcible dispossession of the suit premises. She returned to Mumbai on 19.3.2008 and since she could not enter the suit premises in view of the changed locks to the main door she has approached this Court by way of instant -6- suit.

3. It appears that since the society refused permission to defendant no.2 to induct its employees in the suit premises for want of NOC from Piem, it remained vacant till filing of the suit and thereafter till this date in view of the statement made by their learned senior counsel. When the Motion was placed before this Court for ad-interim relief, the learned counsel for the parties have agreed for final disposal at this stage and accordingly it was adjourned to enable the parties to file their affidavits, rejoinders, sur-rejoinder etc.

4. In short, the case set up by the plaintiff is that she was residing at the suit premises for 13 years and it was her matrimonial home till she was dispossessed in March, 2008. She was in exclusive possession thereof since August, 2006 when defendant no.1 had moved out and was residing separately at the Hotel Taj President. The defendants have colluded illegally and forcibly evicted her from the suit premises in her absence and without her consent between

14.3.2008 and 17.3.2008 and have illegally removed her personal and precious belonging from the suit premises during the above period when she was out of India. -7-

4.1 On the other hand, according to the defendants, defendant no.2 had allotted the suit premises to defendant no.1 who, as per the terms of employment, was entitled to a furnished residential accommodation from defendant no.2. In January, 2008 they learnt that the suit premises were being neglected and were badly maintained. During this time, defendant no.2 also came to know that the lock to the main door of the suit premises had been unlawfully and illegally changed. In view of these breaches committed by defendant no.1, by virtue of their right under the service occupancy agreement, defendant no.2 terminated the said agreement. The suit premises were accordingly handed over by defendant no.1 to defendant no.2 to avoid legal and/or penal action being taken against him and the plaintiff.

5. I have heard learned senior counsel for the parties at great length and with their assistance gone through the entire material placed before this Court. Mr Thorat, learned senior counsel for the plaintiff, at the outset, submitted that the suit premises belonged to Piem and when the plaintiff was dispossessed, defendant no.2 had no right to claim possession thereof either from her or from defendant no.1. The plaintiff -8- and defendant no.1 were allotted the suit premises by Piem in 1995-96 and they continued to be in possession till last.

5.1 Mr.Thorat submitted that the plaintiff had no knowledge about the Leave and Licence and Service Occupancy Agreements. But he then submitted that the suit premises were given on a leave and licence by Piem to defendant no.2 only for a period of two years expiring the said period on 31.7.2007. After this date, defendant no.2 has absolutely no right, title or interest in and to the suit premises. Mr.Thorat, submitted that defendant no.2 had no right either in law or equity to make any claim whatsoever in or to the suit premises or to any alleged breach of the terms of the service occupancy agreement or to question the right of the plaintiff to reside at the suit premises considering that defendant no.1 was separated from her. He submitted that there was a collusion between the defendants who committed the illegal act of forcibly dispossessing the plaintiff without following due process of law.

5.2 Next Mr Thorat submitted that at no point of time Piem had physically handed over the suit premises to defendant no.2 and there was no disturbance to her -9- continuous possession of the suit premises. He submitted that the plaintiff was residing at the suit premises alone and she was not aware about the service occupancy agreement in respect of the suit premises entered between the defendant. In fact, defendant no.1 had no keys of the main door and in view thereof defendant no.1 has attempted to cover up the fact of forcible entry by alleging entry through the side door in his affidavit dated 16.4.2008. The said assertion, according to Mr Thorat, is patently false as the said side door had also been kept locked and latched from inside by the plaintiff.

5.3 Mr Thorat also invited my attention to the provisions in Domestic Violence Act and submitted, the plaintiff’s right as a wife of the defendant to share the home is well protected therein and the defendants have taken possession of the suit premises in flagrant violation of the provisions of the said Act. He submitted that both law and equity are in favour of the plaintiff, an estranged wife, whose husband has resorted to illegal means to gain oust her from her matrimonial home and to steal her belongings in her absence. He submitted, if the defendants wished to obtain possession, they ought to have followed the due process of law. The actions of the defendants in -10- unceremoniously throwing the plaintiff out of her home and depriving her of her personal belongings is in flagrant violation of her rights and in fact her privacy.

5.4 Lastly, Mr Thorat submitted that the defendants, who are very well placed in society and have a high standing and reputation, have unfortunately stooped to forcibly dispossessing the plaintiff by breaking open the front door and entering the suit premises and removing her possession in her absence, have committed several criminal acts and hence the reliefs sought in the Motion, deserve to be granted to protect and restore her rights in and to the suit premises. In support of his submissions, he placed reliance upon the following judgments:(i) B.P.Achala Anand Vs S. Appi B.P.Achala Anand Vs S. Appi B.P.Achala Anand Vs S. Appi Reddy- AIR 2005 Supreme court 986, (ii) Rama Gowda Vs Reddy- AIR 2005 Supreme court 986, (ii) Rama Gowda Vs Reddy- AIR 2005 Supreme court 986, (ii) Rama Gowda Vs