| SooperKanoon Citation | sooperkanoon.com/1103438 |
| Court | Mumbai High Court |
| Decided On | Sep-13-2012 |
| Case Number | WRIT PETITION NO.6586 OF 2012 |
| Judge | R.G. KETKAR |
| Appellant | Skygourmet Catering Private Limited and Another |
| Respondent | Mars Hotels and Resorts Private Limited and Another |
Heard Mr. P. K. Dhakephalkar, learned Senior Counsel for petitioners and Mr. Aspi Chinoy, learned Senior Counsel for respondents at length.
2. Rule. M/s. Jhangiani Narula and Associates waive service for the respondents. By consent of the parties, rule is made returnable forthwith and the Petition is taken up for final hearing.
3. By this Petition under Article 227 of the Constitution of India, Skygourmet Catering Private Limited, petitioner No.1 (original applicant No.1), hereinafter referred to as SKY and WAH Restaurants Private Limited (earlier known as Mars Restaurants Private Limited) (original applicant No.2), hereinafter referred to as Mars or M.R.P.L, as the case may be, have challenged the judgment and order dated 13.12.2011 passed by the learned Judge of Small Causes Court at Bombay, Bandra Bench in R.E.S. Application No.8/RES/2011 as also the judgment and order dated 10.07.2012 passed by the Appellate Bench of Small Causes in Revision Application No.234 of 2011. By these orders, the Courts below refused to grant the interim order in terms of prayer clauses (d) and (e) of the R.E.S. Application No.8 / RES / 2011. SKY and Mars / M.R.P.L. instituted the said application against respondent No.1 - Mars Hotels and Resorts Private Limited (original opponent No.1), hereinafter referred to as M.H.R.P.L. and respondent No.2 â Mars Enterprises (original opponent No.2), hereinafter referred to as M.E. for an order directing M.H.R.P.L. and M.E., theirs directors, partners, servants, officers, agents and representatives, and persons claiming through them to restore the essential supplies of water under K/East-Ward, water meter and Ward No.KE@0213029 and electricity under electric meter No.RI-SH951203 and consumer No.2003890 as also to direct them to allow the access to lifts and stair cases and remove blockage of lifts in the suit building situate at Off International Approach Road, Marol, Andheri (East), Mumbai - 400 059. The parties shall hereinafter referred as per their status before the trial Court. The relevant and material facts that are necessary for the disposal of the present Petition briefly stated, are as under:
4. SKY is a company registered and incorporated under the Companies Act, 1956 and is the owner of ground floor, upper basement and lower basement in the building constructed on a plot admeasuring 4,713.79 sq.mtr. (for short 'suit property') situate in the midst of a piece and parcel of land admeasuring in aggregate 45,104.70 sq.mtr. situate at Village Marol, Andheri, Mumbai (for short 'larger plot'). Mars / M.R.P.L. is the owner of first floor of the building called as 'AOH building'. They jointly have 56.80% undivided shares, rights and title in respect of the suit property and balance 43.20 undivided shares, rights and title in respect of the suit property is held by M.H.R.P.L. and M.E. jointly. Sky is engaged in the business of providing in flight catering services to various airlines (air catering) at Mumbai and other places of India and is one of the leading air caterers in India, providing services to all the leading domestic airlines including Jet Airways and Kingfisher Airlines and international airlines such as Malaysian Airlines and Saudi Arabian Airlines. M.H.R.P.L. is also a company registered and incorporated under the provisions of the Companies Act, 1956 and M.E. is a partnership firm registered under the Indian Partnership Act, 1932.
5. It is the case of the applicants that the respondents are the owners of the remaining floors of AOH building and are in management and control of essential supplies in the AOH building of the applicants. The applicants have purchased the lower basement, upper basement, ground floor and first floor in the AOH building by virtue of four sale deeds namely, (i) Indenture dated 06.10.2005, (ii) Indenture dated 01.07.2006, (iii) Indenture dated 01.02.2008 and (iv) Indenture dated 06.02.2008. The applicants have purchased these premises for the purpose of using the same as an air catering unit (with ground floor kitchen) of applicant No.1 and to meet their business requirement along with 56.80% undivided shares, rights, title and interests in the suit property together with proportionate share in the total FSI from respondent Nos.1 and 2 for consideration mentioned therein.
6. It is the case of the applicants that over last 5-6 years, the applicants and the respondents entered into various agreements and arrangements including Memorandum of Understanding (MoU) dated 31.07.2009. Both the parties were utilizing some common facilities in accordance with the said arrangements. Since the respondents made attempts to interfere with the legal rights of the applicants as purchasers and co-owners, they were constrained to institute a civil suit in this Court, which is still pending. Some arrangements under the said MoU were terminated by the respondents and as per the contractual rights, applicants initiated separate proceedings against respondents in that regard. After termination of certain arrangements under the MoU, respondents started interfering with essential services of the applicants.
7. It is the case of the applicants that they were desirous of obtaining separate water, electricity and gas connections from the relevant authorities in their name so as to avoid a situation where their essential supplies are wrongfully disconnected by the respondents, being the owners of the larger plot of the land. Earlier, the electricity connection with Tata Power Company Limited was in the name of applicant No.1, who had provided the Bank Guarantee for the electricity connection. Applicant No.1 furnished a fresh Bank Guarantee on 21.07.2011 for an amount of Rs.56,05,700/- upon the expiry of the earlier Bank Guarantee, which was furnished at the time of availing the electricity connection. The respondents, however, without seeking appropriate NOC from the applicants, surreptitiously transferred the connection in the name of respondent No.1 in or about April 2010. It is the case of the applicants that the P-Form [for water connection required by Municipal Corporation of Greater Mumbai (M.C.G.M.)] is issued in the name of the applicants for utilization of water on grant of occupation certificate by M.C.G.M. for premises from lower basement, upper basement, ground floor and first floor, which is the portion owned by the applicants for specific permissive user of Air Catering Unit. The water connection obtained by the applicants is illegally curtailed, cut off, withheld by the respondents and unauthorizedly diverted to their hotel from second to sixth floor by illegal installation of pipelines and electric wires for unauthorized and illegal activity and user. The electricity connection granted for the industrial activity is billed by Tata Power Company Limited under the Code No.HT-II Commercial when the bills were issued in the name of applicant No.1 till February 2010 and later on it is clandestinely changed to the name of respondent No.1 from March 2010 without consent of the applicant No.1. The electric connection under consumer No.2003890 and under meter No.RI-SH951203 is originally granted as requisitioned for and by applicant No.1. The original water connection was granted for the premises of the applicants for their legal activity.
8. It is the case of the applicants that applicant No.1 initiated the process of fresh electricity connection and accordingly applied for a fresh connection with Reliance Energy Limited vide its letter dated 21.09.2011. The applicants were advised by the relevant authorities to obtain NOC from the respondents as the respondents were the owners and occupiers and were in management and control of the essential supplies of the applicants. On 28.09.2011, the applicants addressed an email to the respondents in respect of three connections with the layout for laying down the services, which would enable them to obtain services from the authorities. On the same day i.e. on 28.09.2011, respondents asked the applicants to send the proposed routing and location of all the essential supplies. The applicants forwarded the routing map, denoting the intended route for laying down the underground pipelines and cables installation of water, gas and electricity connections, which they desired to obtain in their name, alongwith the draft NOC on 08.10.2011.
9. It is the case of the applicants that the respondents, instead of giving NOC, raised certain objections vide email dated 10.10.2011. The applicants vide their email of 14.10.2011 requested the respondents to suggest the proposal of routing water, electricity and gas connections as they are having the complete know-how of the premises. On 15.10.2011, the applicants learned that the respondents would be disconnecting the essential supplies of water, electricity and gas within 10 minutes time. Despite receiving the applicants' email of 15.10.2011, respondents disconnected the essential supplies of electricity and water at 14:20 hours on 15.10.2011. The applicants addressed an email to the respondent to immediately resume / restore the supply of the said essential services. The respondents however, did not resume / restore the supplies and it is in these circumstances, the applicants filed the application under Section 12-A of the Maharashtra Ownership of Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short 'MOFA') on 21.10.2011. During the pendency of those proceedings, the applicants prayed for interim reliefs in terms of prayer clauses (d) and (e) of the said application.
10. The respondents filed their written statement dated 16.01.2012 resisting the said application. It is the case of the respondents that originally the business of catering in the name of Sky Gourmet Private Limited was started and carried out by them. Subsequently as a business decision, the same was sold to the applicants and consequently, the suit property was also sold to them. It was agreed that the applicants would obtain their own connections for water and electricity. The applicants represented that it would take some time for them to make their arrangements and it was agreed as a purely interim measure and arrangement that the respondents would supply them electricity and water for a finite period under the Common Utilities Building agreement (CUB agreement) being the structure through which the electricity and water lines are routed. A CUB agreement was executed in this regard on 13.03.2006. Though the period specified therein was over, the applicants did not take any steps or action to make their own arrangements in order to save the expenditure and the space for installation. Though the applicants agreed to purchase the equipment, they have resiled from the same.
11. It is the case of the respondents that the applicants had agreed to take certain utility services in respect of part of the AOH building owned by them by and under the CUB agreement dated 13.03.2006. The said utility services were agreed to be supplied by the respondents from a Common Utility Building constructed and put up by them on their property, which did not form part of the AOH building. The grant of such services was for a specified consideration and the terms thereof were recorded in the CUB agreement dated 13.03.2006. The terms of the CUB agreement dated 13.03.2006 with regard to the supply of the said CUB services were modified under the terms of a further MoU dated 31.07.2009 entered into between the parties. Clause 5 of the said MoU, in particular, dealt with the said services. It was agreed between the parties that upon termination of the said MoU, the applicants would be entitled to receive the equipments listed in Annexure 5 to the said MoU from the respondents. The respondents would be entitled to adjust and appropriate the costs of the said equipment out of the security deposit of Rs.6.26 crore made by the applicants. The said equipment listed in Annexure 5 located in the Common Utility Building and the HT/LT room, including the electric panel were to be handed over by the respondents to the applicants and to be relocated by the applicants in the basement of the AOH building or any other location belonging to the applicants. The respondents denied that they are either promoters or in-charge of management of the essential supplies or are managers under Section 12-A of the MOFA.
12. The respondents further contended that on 05.08.2010, they issued a notice of termination in respect of Clauses 4 and 5 of the MoU dated 31.07.2009. On 03.12.2010, the applicants instituted Suit No.162 of 2011 (Suit Lodging No.3433 of 2010) on the Original Side of this Court challenging the notice of termination and prayed for reliefs. The parties entered into consent terms on 09.12.2010. It was agreed between the parties that the termination of MoU dated 31.07.2009 in respect of clause Nos.4 and 5 would take effect from 01.03.2011 and 01.07.2011 respectively dealing with the common utility services. This Court passed ad-interim relief in terms of the minutes of order dated 09.12.2010. After passing of the consent order, the respondents called upon the applicants on various occasions to shift the equipments listed in Annexure 5 from Common Utility Building by 01.07.2011. On 31.08.2011, respondent No.2 gave final notice to the applicants calling upon them to remove and shift the said equipments to the AOH building and recorded that the CUB services would be discontinued on 08.09.2011.
13. On 08.09.2011, the applicants instituted Arbitration Petition Lodging No.1001 of 2011 in this Court and moved for urgent reliefs including seeking continuance of the CUB services and electric connection By order dated 09.09.2011, the learned Single Judge of this Court (Coram: S. C. Dharmadhikari, J.) recorded that as the services have been discontinued already in such circumstances, prima facie, the applicants herein do not have any interests in the property but they were only to be provided facilities then post termination of the same, the revival thereof could not be directed. The reliefs prayed therein were not granted subject to the respondents securing the claim of the applicants towards facilities, by furnishing a bank guarantee of Rs.6.24 crore and keeping the same alive till the arbitral proceedings were concluded. The order of the learned Single Judge was challenged by the applicants before the Division Bench of this Court. By order dated 20.09.2011, the Division Bench dismissed the Appeal. The respondents submitted that all the aforesaid facts, proceedings and the orders passed thereon have been suppressed by the applicants. The applicants have not approached the Court with clean hands and, therefore, are not entitled to any relief.
14. The respondents further contended that the electric connection and electric meter are located on the property of respondent No.1 and not in the AOH building. From the said electric meter, the electric supply is being routed into the transformer and from the transformer to the separate panels located in the CUB building and two panels are connected to the premises occupied by the applicants while other panels are connected to the premises occupied by the respondents. The respondents further contended that M/s. Tata Power Supply mandated that the electric connections and bills would only stand in the name of owner of the property, and accordingly, the connection was granted to respondent No.1. Even originally, prior to March, 2008, the electric meter was in the name of the respondents. The respondents thereafter made reference to the exchange of correspondence between the parties through letters / emails and submitted that the applicants are free to install their own equipments for obtaining electric connections in their own premises and denied that they are they were in any manner disconnecting or disrupting water connection as alleged. All the adverse allegations made in the application were denied.
15. Initially, the learned trial Judge refused to grant ad-interim order on 21.10.2011 and adjourned the hearing of the matter to 31.10.2011. Aggrieved by this refusal, the applicants filed Revision Application No.195 of 2011 before the Appellate Bench of Small Causes Court on 23.10.2011. By order dated 26.10.2011, the Appellate Bench directed the respondents to restore electricity and water supply to the premises of the applicants within 24 hours from passing of the order. It is the case of the applicants that the respondents however, addressed an email on 27.10.2011 to them stating therein that they would not provide the electricity and water in the applicants' premises. On 28.10.2011, the applicants filed miscellaneous application joining the Senior Inspector of Police as a party. With the help of Senior Inspector of Police, the applicant succeeded in getting the electricity and water supply restored. Aggrieved by the order dated 26.10.2011, the respondents instituted Writ Petition No.9418 of 2011 in this Court. By order dated 21.11.2011, the said Writ Petition was dismissed by directing the learned trial Judge to hear the interim application.
16. By judgment and order dated 13.12.2011, the learned trial Judge dismissed the application for interim order in terms of prayer clauses (d) and (e) on the ground that Section 12-A of MOFA does not contemplate granting of interim relief for restoration of essential supplies. The applicants filed miscellaneous application for stay of operation of the order dated 13.12.2011. The learned trial Judge stayed the operation of the order dated 13.12.2011 and the order passed in Revision Application No.195 of 2011 on 26.10.2011 for restoring supply of electric and water was continued till 03.01.2012. The applicants thereafter instituted Revision Application No.234 of 2011 on 21.12.2011 and filed separate miscellaneous application for continuation of interim relief. On 23.12.2011, the Appellate Bench continued its order for supply of electricity and water and the said order was extended from time to time. Ultimately, by order dated 10.07.2012, the Appellate Bench dismissed the Revision Application by holding that the respondents are neither promoters nor managers under Section 12-A of MOFA and consequently, Section 12-A of MOFA is not applicable.
17. The learned trial Judge, while passing the impugned order, recorded the following findings:
(i) the respondents are prima facie promoters within the meaning of Section 2(c) of MOFA;
(ii) the question whether the applicants have waived their rights can be decided at the time of final hearing;
(iii) the question whether the application is hit by principles of res judicata can be decided at the time of final hearing;
(iv) the question whether the conditional NOC given by the respondents is acceptable to the applicants or not can be decided at the time of final hearing;
(v) under Section 12-A of MOFA, the Court has no jurisdiction to grant interim order in respect of the essential supply of services.
18. As far as Appellate Bench of Small Causes Court is concerned, the following findings were recorded:
(i) the respondents are not promoters within the meaning of Section 2(c) of the Act, and consequently, Section 12-A of MOFA is not applicable;
(ii) in view of this Court declining to grant interim order as prayed for by the applicants in the Suit and the Arbitration Petition, they are not entitled to any interim relief;
(iii) the CUB agreement dated 13.03.2006 and the MoU dated 31.07.2009 were executed only as a temporary measure and till the applicants got their connections, which they were supposed to get since 2009;
(iv) the applicants did not come to the Court with clean hands.
Aggrieved by these decisions, the applicants have instituted the present Petition.
19. In support of this Petition, Mr. Dhakephalkar strenuously contended that the applicants have not suppressed any relevant and material fact in the restoration application. He submitted that all these facts have been set out by the applicants. The proceedings in the suit as well as the Arbitration Petition instituted by the applicants on the Original Side of this Court have no relevance insofar as the present application made by them under Section 12-A of MOFA is concerned. Alternatively, he submitted that in any case no ex-parte order was obtained by the applicants. In fact, the learned trial Judge declined to grant ad-interim relief. Aggrieved by this refusal, the applicants filed Revision Application before the Appellate Bench of the Small Causes Court. After hearing both sides, the Appellate Bench of the Small Causes Court ordered restoration of essential supplies. It, therefore, cannot be said that the applicants have suppressed relevant and material facts thereby dis-entitling them from claiming any equitable relief.
20. He further submitted that the learned trial Judge came to the conclusion that the respondents are promoters as per Section 2(c) of MOFA. However, the trial Court declined to grant interim relief on the ground that under Section 12-A of MOFA, the relief can be granted at the stage of final hearing of the application. He submitted that the Courts below committed serious error in arriving at this conclusion on the basis of the provisions of the Bombay Rents, Hotels and Lodging Rates Control Act, 1947 (for short the 'Bombay Rent Act') and The Maharashtra Rent Control Act, 1999 (for short the 'Maharashtra Rent Act'). He submitted that under Section 12-A of MOFA, the trial Court has power to grant interim relief pending adjudication of the main application.
21. He further submitted that though the trial Court recorded a specific finding that the respondents herein are the promoters within the meaning of Section 2(c) of MOFA, the respondents did not challenge the said finding by filing revision application or cross-objections in the Revision Application preferred by the applicants. In other words, he submitted that the respondents accepted the finding recorded by the trial Court that they are the promoters. However, in the absence of either cross-objections or substantive Revision Application, the Appellate Bench came to the conclusion that the respondents are not promoters and consequently, Section 12-A of MOFA is not applicable. He submitted that this is wholly impermissible. He further submitted that the respondents are promoters or managers in-charge of the essential supplies namely electricity supply and water supply. They cannot withhold the essential supplies. In any case, he submitted that the Courts below committed serious error in declining to grant interim order pending main application, particularly when the ad-interim order is operating in favour of the applicants since 26.10.2011. Instead of declining to grant interim relief, the Courts below should have disposed of the main application by continuing the interim relief. No prejudice would have been caused to the respondents. He further submitted that in any case, the contractual obligations arising between the parties under the CUB agreement dated 13.03.2006 and MoU dated 31.07.2009 will not override the statutory obligations arising between the parties under the MOFA.
22. On the other hand, Mr. Aspi Chinoy supported the impugned orders. He invited my attention to the CUB agreement dated 13.03.2006, and in particular clause 4 thereof, which provides that SKY or Mars may terminate the said agreement at any time by giving 90 days notice in writing to M.E. and upon such termination, M.E. shall refund the interest free security deposit. He also invited my attention to the equipments mentioned in Annexure II of the CUB agreement. He further invited my attention to the MoU dated 31.07.2009 and in particular, clause 5 thereof and submitted that the said clause requires M.E. to provide SKY and M.R.P.L. with the services mentioned in the CUB agreement for a minimum period of one year from the date of MoU. After the expiry of one year, the CUB agreement can be terminated by any party by giving the other party six months' prior written notice. It also provided that if there is any default by SKY or M.R.P.L. of any of its obligations, M.E. shall be entitled to terminate the CUB agreement forthwith if such default is not remedied within 90 days of M.E. notifying SKY or M.R.P.L., as appropriate, of such default. Upon termination, SKY and M.R.P.L. shall be entitled to receive from M.E., the entire equipment listed in Annexure 5 located in the Utility Building. It also provided that upon termination all the equipment located at the Utility Building and the HT/LT electric room and listed in Annexure 5, shall be handed over by M.E. to SKY and M.R.P.L. and relocated by them to the basement of the AOH building, or such other location as may be decided by SKY or M.R.P.L.
23. Mr. Chinoy submitted that the applicants had agreed to take certain utility services in respect of part of the AOH building owned by them by and under the CUB agreement dated 13.03.2006. The terms of the CUB agreement with regard to the supply of the said CUB services were modified under the terms of a further MoU dated 31.07.2009 entered into between the parties. Clause 5 of the said MoU provided for termination and the consequence that will follow upon the termination. He submitted that on 05.08.2010, the respondents issued a notice of termination in respect of clauses 4 and 5 of the MoU dated 31.07.2009. The applicants instituted Suit No.162 of 2011 on the Original Side of this Court on 03.12.2010. The parties entered into consent terms on 09.12.2010 and this Court passed ad-interim relief in terms of minutes of order dated 09.12.2010. After passing of the consent order, the respondents called upon the applicants on various occasions to shift the equipments listed in Annexure-5 from Common Utility Building by 01.06.2010 The applicants however, failed and neglected to shift the equipments. On 31.08.2011, respondent No.2 gave final notice to the applicants calling upon them to remove and shift the said equipments to the AOH building and recorded that the CUB services will be discontinued on 08.09.2011. On 08.09.2011, the applicants instituted Arbitration Petition in this Court and moved for the urgent interim reliefs including seeking continuance of CUB services and electric connection. By order dated 09.09.2011, the learned Single Judge of this Court declined to grant any relief. Aggrieved by the order passed by the learned Single, the applicants preferred Appeal before the Division Bench of this Court, which was dismissed on 20.12.2011. He submitted that the applicants have suppressed these facts and did not approach the Court with clean hands. He submitted that the applicants are, therefore, not entitled to any equitable relief.
24. He submitted that the respondents are not promoters within the meaning of Section 2(c) of MOFA. He invited my attention to Sections 4 and 16 and submitted that the applicants and the respondents are co-owners of land and building. He further submitted that none of the documents between the parties, there is reference to the provisions of MOFA. MOFA does not contemplate execution of conveyance to any individual party. It also does not contemplate co-ownership between the parties. The applicants and the respondents are managing their respective properties separately. He, therefore, submitted that no case is made out by the applicants and the Petition deserves to be dismissed.
25. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. It is not in dispute that the applicants have purchased the lower basement, upper basement, ground floor and first floor in the AOH building under four sale deeds namely (i) Indenture dated 06.10.2005, (ii) Indenture dated 01.07.2006, (iii) Indenture dated 01.02.2008 and (iv) Indenture dated 06.02.2008, from the respondents. The applicants have purchased these premises along with 56.80% undivided shares, rights, title and interests in the suit property together with proportionate share in the total FSI from respondents. It is also not in dispute that initially, the parties entered into CUB agreement on 13.03.2006.
26. The said agreement recorded that the utility building contains certain equipments and facilities as specified in Annexure II to the said agreement. The equipment and facilities as specified in Annexure II reads as under:
| Sr.No. | Item | Amount in lacs |
| 1 | 4 Nos. Chiller units with desuperheaters | '158.00 |
| 2 | 2 Nos. Catipillar gensets (1,500 KVA each with installation) | '231.00 |
| 3 | Main Electrical Panel (SKY) | '67.00 |
| 4 | Cost of genset transferred to SKY MAA(loss on transfer) | '14.00 |
| 5 | 3 Nos. hot water boilers + proportionate cost ofchimney / pumps and panel | 51.00 |
| 6 | Hydropneumaticand filtration system | '35.00 |
| 7 | 75% of STP plant (based on discharge of STP) | '26.00 |
| 8 | 75% cost of HT sub-station construction and 1transformer of 2,000 KVA | '37.00 |
| 9 | 50% cost of Elec / Water deposits paid | '7.00 |
| Â | Â | '626.00 |
5. COMMON UTILITY BUILDING
5.1 ME shall continue to provide Sky and MRPL with the services mentioned in the CUB Agreement, and Sky and MRPL shall continue to pay to ME charges of Rs.10,000/- per month, for a minimum period of one year from the date hereof. After the expiry of one year from the date hereof, any party may terminate the CUB Agreement by providing the other party with 6 months prior written notice. Provided that, if there is any default by Sky or MRPL of any of its obligations under this agreement, ME shall be entitled to terminate the CUB agreement forthwith if such default is not remedied within 90 days of ME notifying Sky or MRPL, as appropriate, of such default.
5.2 Upon termination, SKY and MRPL shall be entitled to receive from ME the entire equipment listed in Annexure 5 hereto and presently located in the Utility Building and ME shall be entitled to adjust and appropriate the cost thereof as stated in the said Annexure out of the security deposit held. 5.3 Upon termination all the equipment located at the Utility Building and the HT/LT electric room and listed in Annexure 5, shall be handed over by ME to Sky and MRPL and relocated by them to the basement of the AOH Building, or such other location as may be decided by Sky or MRPL. Upon the completion of such transfer and relocation, ME shall refund to SKY and MRPL, the balance remaining due out of interest-free refundable security deposit of Rs.6,26,00,000/- as defined in clause 1.1 - CUB Agreement above after appropriating there from the cost of the equipment as set out in Annexure 5.
28. Clause 5.1 extracted hereinabove prima facie shows that ME shall continue to provide SKY and M.R.P.L. with the services mentioned in the agreement for a minimum period of one year from the date of MoU. After the expiry of one year from the date of MoU, any party can terminate the CUB agreement by providing the other party with six months prior written notice. The minimum period of one year expired on 30.07.2010.
29. The respondents gave notice of termination on 05.08.2010 in respect of clauses 4 and 5 of MoU dated 31.07.2009. The applicants instituted Suit No.162 of 2011 on the Original Side of this Court challenging the notice of termination. The applicants inter alia prayed for declaration that they are entitled to use, occupation and possession of the suit building and the suit property as more particularly described therein and are entitled to carry on their business activities without any hindrance or interference by the respondents-defendants therein; for mandatory and permanent injunction in their favour and against the respondents from in any manner obstructing the applicants from carrying on its business activities peaceably without any hindrance or interference from the suit building and suit property. The applicants also prayed for interim relief pending suits restraining the respondents from obstructing the applicant from carrying on its business activities peaceably without any hindrance or interference from the respondents. The parties entered into consent terms on 09.12.2010. It was agreed between the parties that the termination of MoU dated 31.07.2009 in respect of Clauses 4 and 5 would take effect from 01.03.2011 and 01.07.2011 respectively dealing with the common utility services. This Court passed ad-interim relief in terms of minutes of order dated 09.12.2010. In other words, the applicants agreed that the notice of termination will take effect from 01.07.2011 in respect of Clause No.5. Clause 5 of the MoU provided the consequences, which will follow upon termination. Clause 5.2 provided that upon termination, SKY and M.R.P.L. shall be entitled to receive from M.E., the entire equipments listed in Annexure - 5 located in the utility building and M.E. shall be entitled to adjust and appropriate the cost thereof as stated in the said Annexure out of the security deposit held. Clause 5.3 provided that upon termination of the equipments located at the utility building and the HT/LT electric room and listed in Annexure 5 shall be handed over by M.E. to SKY and M.R.P.L. and relocated by them to the basement of the AOH building, or such other location as may be decided by SKY or M.R.P.L. It is in this context, the respondents called upon the applicants to shift the equipments listed in Annexure 5 from Common Utility Building. The equipments listed in Annexure 5 are to the following effect:
| Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â PLANT ROOM EQUIPMENT CODE | |
| 01 Boiler 302 Boiler 203 Boiler 1 04 Chimney 05 Air Compressor 06 Hot Water Pumps 07 Hot Water Pump Panel 08 VFO Panel - ½ 09 Club Secondary Pump 10 Club Secondary Pump 11 Club Secondary Pump 12 Hotel Secondary Pump 13 Hotel Secondary Pump 14 Hotel Secondary Pump 15 Hotel Secondary Pump | 16 Primary Pump17 Primary Pump18 Primary Pump 19 Chilled Water Makeup Tank 20 Chilled Water Expansion Tank 21 Pump for 18/20 22 Chiller 1 23 Chiller 2 24 Chiller 3 25 Main Panel 26 Capacitor Bank 27 Reliance Main Panel 28 Chilled Water System Panel 29 Treated Water SUMP Pump Panel |
31. The applicants instituted the Arbitration Petition (L) No.1001 of 2011 in this Court and moved for urgent reliefs including seeking continuance of CUB services and electric connection. In the Arbitration Petition, the applicants inter alia prayed (i) for issuing directions to the respondents to restore the CUB Â facilities / services and other related services, which were disrupted by them; (ii) for granting a temporary order and injunction restraining the respondents from disrupting CUB facilities; (iii) for granting a temporary order and injunction restraining the respondents from taking any action against the applicants in terms of the MoU, pending the commencement and completion of arbitral proceedings. The learned Single Judge (Coram: S. C. Dharmadhikari,
J.) disposed of the Petition on 09.09.2011. Paragraph 4 of the said order reads as under:
â4] After hearing both sides, to my mind, no case is made out for any urgent ad-interim reliefs. Services have been discontinued on the own showing of petitioners. However, even if it is argued that the suit was in relation to some other grievances, yet, both clauses which have been referred to by the learned Senior Counsel appearing for petitioners, state that there is no interest in the property nor in the land or the structures. What has been agreed between parties is that these respondents shall continue to provide the services mentioned in the agreement and the charges thereof shall be paid. There may be an arrangement with regard to certain machinery or equipment which is described in the Annexures, yet, both sides have understood the arrangement to mean that prima facie on certain sums being paid, the facilities would be extended. Further, they were aware as to how the termination will be effected. In fact the termination appears to have been effected already, but, there has been some arrangement for the period for it actually coming into force. In such circumstances and when prima facie the petitioners do not have any interest in the property but they were only to be provided facilities, then to my mind, post termination of the same the revival thereof cannot be directed. More so, when parties are not ad idem and there is dispute with regard to obligations under the clauses referred to above of the agreement in question. That is a matter for the Arbitrators to decide. Presently, the services have been terminated and all that is pleaded is that there were some negotiations and discussions but admittedly no agreement could be reached, then, allowing the petitioner to continue with the services would mean granting of reliefs at this stage itself. In the light of the fact that the respondents are ready and willing to secure the claim towards equipments and any rights flowing allegedly for the use of said facilities under the said agreement, the reliefs prayed cannot be granted.â
32. The learned Single Judge prima facie recorded that the applicants did not make out a case for urgent ad-interim reliefs. It was further recorded that the termination has been effected already and in such circumstances, the applicants do not have any interest in the property but they were only to be provided facilities and post-termination, the revival thereof cannot be directed. The learned Single Judge also observed that the dispute with regard to obligations under the Clauses referred to in the agreement is a matter for the Arbitrators to decide. It was also observed that allowing the applicants to continue with the services would mean granting of reliefs at interim stage itself. The learned Single Judge declined to grant interim relief as prayed for as respondents were ready and willing to secure the claim towards equipments and any rights flowing allegedly for the use of said facilities under the said agreement. Aggrieved by this order, the applicants preferred Appeal (L) No.607 of 2011 before the Division Bench of this Court, which was dismissed on 20.09.2011. In other words, the applicants could not secure any interim order either in the Suit or the Arbitration Petition. It is also not in dispute that the parties have not initiated any proceedings before the Arbitrators.
33. The applicants did not get any interim order either in Suit No.162 of 2011 or in Arbitration Petition (L)No.1001 of 2011. It is only thereafter, the applicants instituted the present restoration application. The learned trial Judge declined to grant interim relief on the ground that under Section 12-A of MOFA, the Court has no jurisdiction to grant interim order in respect of the essential supply of services. The learned trial Judge prima facie held that the respondents are promoters within the meaning of Section 2(c) of MOFA and the question whether the respondents are promoters or not can be decided at the time of final hearing. As against this, the Appellate Bench of Small Causes Court held that the respondents are not promoters within the meaning of Section 2(c) and consequently, Section 12-A of MOFA is not applicable. The Appellate Bench declined to grant interim order on the following grounds (i) this Court declined to grant interim order as prayed for by the applicant in the Suit and Arbitration Petition, and therefore, they are not entitled to any interim relief, (ii) the CUB agreement dated 13.03.2006 and the MoU dated 31.07.2009 were executed only as a temporary measure and till the applicants got their connections, which they were supposed to get since 2009, and (iii) the applicants did not come to the Court with clean hands as they suppressed the earlier litigation. Prima facie, I am of the opinion that the reasons (i) to (iii) given by the Appellate Bench of the Small Causes Court cannot be faulted with.
34. This is particularly so as it is the case of the applicants that they were desirous of obtaining separate water, electricity and gas connections from the relevant authorities in their name so as to avoid a situation where their essential supplies are wrongfully disconnected by the respondents, being the owners of the larger plot of land. Applicant No.1 accordingly initiated the process of fresh electricity connection and applied for a fresh connection with Reliance Energy Limited vide its letter dated 21.09.2011. It is the case of the respondents that it was agreed between the parties that the applicants would obtain their own connections for water and electricity. They represented that it will take some time for them to make their arrangements. It was, therefore, agreed as a purely interim measure and arrangement that the respondents would supply them electricity and water for a finite period under the CUB agreement. As noted earlier, respondent No.2 issued notice of termination dated 05.08.2010. The applicants instituted Suit No.162 of 2011 (Suit Lodging No.3433 of 2010) on the Original Side of this Court challenging the termination and praying for interim reliefs. The parties entered into consent terms on 09.12.2010. It was agreed between the parties that termination of MoU dated 31.07.2009 in respect of clause No.5 would take effect from 01.07.2011. This Court passed ad-interim relief in terms of minutes of order dated 09.12.2010. The respondents called upon the applicants on various occasions to shift the equipments listed in Annexure-5 from Common Utility Building by 01.07.2011. Respondent No.2 gave final notice on 31.08.2011 to the applicants calling upon them to remove and shift the said equipments to AOH building and recorded that CUB services would be discontinued on 08.09.2011. The applicants instituted Arbitration Petition (L) No.1001 of 2011 in this Court and moved for urgent relief including seeking discontinuance of CUB services and electric connection. The learned Single Judge declined to grant any interim relief. Aggrieved by this order, the applicants preferred Appeal before the Division Bench of this Court, which was dismissed on 20.09.2011. I am, therefore, of the opinion that prima facie the applicants have not made out case for grant of interim relief. The learned trial Judge has observed that question whether the respondents are promoters or not can be decided at the time of final hearing. As the main application is pending, I refrain to go into the question whether the respondents are promoters or managers in-charge of the essential supplies. The finding recorded by the Appellate Bench that the respondents are not promoters will have, therefore, to be treated as a prima facie finding and the learned trial Judge will decide the restoration application uninfluenced by observation / finding recorded by the Appellate Bench.
35. The learned trial Judge upon comparison of Section 24 (2-A) of the Bombay Rent Act and Section 29(3) of the Maharashtra Rent Act with Section 12-A of MOFA came to the conclusion that the Court has no jurisdiction under Section 12-A to grant interim order in respect of the essential supply of services. Section 12-A of MOFA reads as under:
12A. Manager not to cut-off, withhold, curtail or reduce essential supply or service.-
(1) No person, who is a promoter, or who is in- charge of management or connected with the management of a block or building of flats, whether as member of a managing committee. director, secretary or otherwise, or is responsible for the maintenance thereof (herein after in this section referred to as the managerâ) shall, without just and sufficient cause, either by himself or through any person, cut off, withhold, or in any manner curtail or reduce, any essential supply or service enjoyed by the person who has taken a flat (or by any person in occupation thereof through or under him) in respect of the flat taken or agreed to be taken by him.
(2) The person who has taken or agreed to take the flat or the occupier may, if the manager has contravened the provisions of sub-section (I), make an application to the Court for a direction to restore such supply or service.
(3) If the Court on enquiry finds that the applicant or the person through or under whom he is in occupation has been in enjoyment of the essential supply or service, and that it was cut off or withheld or curtailed or reduced by the manager without just and sufficient cause, the Court shall make an order directing the manager to restore such supply or service before a date to be specified in the order.
(4) The manager who fails to restore the supply or service before the date so specified, shall for each day during which the default continues thereafter, be liable upon a further direction by the Court to that effect, to fine which may extend to one hundred rupees.
(5) Notwithstanding anything contained in any law for the time being in force,-
(a) in Greater Bombay, the Court of Small Causes, Bombay,
(b) in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court, and
(c) elsewhere, the Court of the Civil Judge (Senior Division), shall have jurisdiction to decide any application made under sub-section (2), and no other Court shall have jurisdiction to entertain such application. No appeal shall application; but in Greater Bombay a bench of two judges of the Court of Small Causes, Bombay which shall not include the Judge who made such order, and elsewhere the District Court, may for the purpose of satisfying itself that the order made was according to law, call for the case in which such order was made and the Bench or Court aforesaid or the District judge or any Judge to which the case may be referred by the District Judge, shall pass such order with respect thereto as it or he thinks fit.
(6) Any manager who contravenes the provisions of sub-section (1) shall, on conviction be punished with imprisonment for a term which may extend to three months, or with fine, or with both.
(7) The offence under sub-section (6) shall be cognizable, and shall not be triable by any Court inferior to that of a 1[Metropolitan Magistrate, or a Judicial Magistrate of the First Class].
Explanation I. - In this section, essential supply or service includes the supply of water, electricity, lights in passages and on stair-cases, and lifts and conservancy or sanitary service.
Explanation II. - For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the manager on account of which the essential supply or service is cut off by the local authority or any other competent authority.
36. Section 24 of the Bombay Rent Act and Section 29 of the Maharashtra Rent Act are identically worded. Section 29 of the Maharashtra Rent Act reads as under:
â29. Landlord not to cut-off or withhold essential supply or service.
(1) No landlord, either himself or through any person acting or purporting to act on his behalf, shall, without just or sufficient cause, cut-off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.
(2) A tenant in occupation of the premises may, if the landlord has contravened the provisions of sub-section (1), make an application to the court for a direction to restore such supply or service.
(3) Having regard to the circumstances of a particular case the court, may, if it is satisfied that it is necessary to make an interim order, make such order directing the landlord to restore the essential supply or service before the date specified in such order, before giving notice to the landlord of the enquiry to be made in the application under sub-section (3) or during the pendency of such enquiry. On the failure of the landlord to comply with such interim order of the court, the landlord shall be liable to the same penalty as is provided for in sub-section (4).
(4) If the court on inquiry finds that the tenant has been in enjoyment of the essential supply or service and that it was cut-off or withheld by the landlord without just or sufficient cause, the court shall make an order directing the landlord to, restore such supply or service before a date to be specified in the order. Any landlord who fails, to restore the supply or service before the date so specified, shall, for each day during which the default continues thereafter, be liable upon further directions by the court to that effect, to fine which may extend to one hundred rupees.
(5) Any landlord, who contravenes, the provisions of sub-section (1), shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees or with both.
(6) An application under this section may be made jointly by all or any of the tenants of the premises situated in the same building.
Explanation.- In this section,-
(a) essential supply or service includes supply of water, electricity, lights in passages and on staircases, lifts and conservancy or sanitary service;
(b) withholding any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply or service is cut-off by the municipal authority or any other competent authority.
(7) Without prejudice to the provisions of sub-sections (1) to (6) or any other law for the time being in force, where the tenant,-
(a) who has been in enjoyment of any essential supply or service and the landlord has withheld the same, or
(b) who desires to have, at his own cost, any other essential supply or service for the premises in his occupation, the tenant may apply to the Municipal or any other authority authorized in this behalf, for the permission or for supply of the essential service and it shall be lawful for that authority to grant permission for, supply of such essential supply or service applied for without insisting on production of a "No Objection Certificate" from the landlord by such tenant.â
37. Section 12A(5) provides that notwithstanding anything contained in any law for the time being in force in Greater Bombay, the Court of small Causes, Bombay shall have jurisdiction to decide any application made under sub-section (2), and no other shall have jurisdiction to entertain such application. In other words, Section 12-A(5) confers exclusive jurisdiction upon the Court of Small Causes, Bombay. The Court of Small Causes in Greater Bombay is constituted under the Presidency Small Causes Courts Act, 1882 (for short '1882 Act'). Section 5 provides that there shall be in each of the towns of Calcutta, Madras and Bombay, a Court to be called the Court of Small Causes of Calcutta, Madras or Bombay as the case may be. Section 9 empowers the High Court to frame rules having the force of law to prescribe the procedure to be followed and the practice to be observed by the Small Causes Court. Section 16 provides that all questions, other than questions relating to procedure or practice, which arise in suits or other proceedings under this Act in the Small Causes Court shall be dealt with and determined according to the law for the time being administered by the High Court in the exercise of its ordinary original civil jurisdiction. Section 17 lays down that the local limits of the jurisdiction of each of the Small Causes Court shall be the local limits for the time being of the ordinary original civil jurisdiction of the High Court. In view of the provisions of 1882 Act, all questions other than the questions relating to procedure of practice, which arise in suits or proceedingsare required to be dealt with by the Small Causes Court according to the law for the time being administered by the High Court in the exercise of its ordinary original civil jurisdiction. This Court has made Rules called as Presidency Small Cause Court Rules. Rule 2 thereof reads as under:
â(2) The portions of the Code of Civil Procedure, 1908 (Act V of 1908) as modified from time to time by any competent legislature in its application to the State of Maharashtra, with its First Schedule as amended by the High Court of Judicature at Bombay under Section 122 of the said Code from time to time upto 1st May 1968, specified in the first column of the Schedule hereto annexed shall, subject to the additions, alterations and modifications specified in the second and the third columns of that Schedule, extend and shall be applied to the Small Cause Court, and the procedure prescribed thereby shall be the procedure to be followed in the Court in all suits cognizable by it except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Small Cause Courts Act, 1882.â
38. In view of these provisions, I am unable to agree with the finding recorded by the learned trial Judge that while considering the application under Section 12-A of MOFA, the Court has no jurisdiction to grant interim relief pending the main application. This is also to be appreciated in the backdrop of Explanation I to Section 12-A. The said Explanation provides that essential supply of service includes the supply of water, electricity, lights in passages and on stair-cases, and lifts and conservancy or sanitary service. It hardly needs to be emphasized that the supply of water and electricity is essential in its very nature. It is common knowledge that the proceedings under Section 12-A of MOFA for restoration of essential supply of services are not disposed of with expedition and promptitude. Even otherwise, it is settled position in law that if the Court has power to grant final relief, it has also power to grant interim relief unless the provisions of the particular Statute expressly say otherwise. There is no express provision in MOFA, which prohibits the Court from granting interim relief pending adjudication of the main proceedings under Section 12-A. As held by the learned Single Judge of this Court (Coram: V. C. Daga, J.) in Deshmukhand Company Vs. Avinash V. Khandekar, 2006(2) Bom.C.R.321, while granting interim relief, the Court has also to take in account whether the interim relief is claimed in the aid of final relief so as to maintain status quo ante or to preserve status of parties. In the present case, interim relief is claimed by the applicants in the aid of final relief. I am, therefore, of the opinion that pending adjudication of the main application under Section 12-A, if the Court, upon enquiry, comes to the conclusion that a case is made out for the grant of interim relief, it has the requisite power to grant interim relief in appropriate cases.
39. In the result, I am of the opinion that the applicants have not prima facie made out a case for grant of interim relief pending the main application as they failed to obtain such reliefs, both, in the Suit and Arbitration Petition filed on the Original Side of this Court. I also prima facie agree with the finding recorded by the Appellate Bench of the Small Causes Court that the CUB agreement dated 13.03.2006 and MoU dated 31.07.2009 were executed only as a temporary measure. It was agreed between the parties that the applicants would obtain their own connections for water and electricity and since the applicants represented that it would take some time for them to make their arrangements, it was agreed as a purely interim measure and arrangement that the respondents would supply them electricity and water for a finite period. I also prima facie agree with the finding recorded by the Appellate Bench of the Small Causes Court that the applicants did not approach the Court with clean hands as they did not disclose the proceedings of Suit No.162 of 2011 and Arbitration Petition (L)No.1001 of 2011. The applicants are prima facie not entitled to claim equitable relief.
40. In the result, the Petition fails and the same is dismissed. Rule is discharged. In the circumstances of the case, there shall, however, be no order as to costs.
41. It is made clear that the learned trial Judge shall decide the main application as expeditiously as possible, and in any case, within three months from production of this order as the application is for restoration of essential supply of services. The learned trial Judge will decide the said application uninfluenced by any observations made by the Courts below as also any observations made in this order and shall decide the same on the basis of material on record and in accordance with law.
42. At this stage, Mr. Dhakephalkar orally prays for continuation of the ad-interim order passed by this Court on 16.07.2012.
43. Since the applicants desire to challenge this order before the higher Court, in my opinion, the request made on behalf of the applicants is reasonable. Hence, the ad-interim order, below exhibit-9 granted by the Division Bench of the Small Causes Court and which was continued by this Court, shall remain in force for the period of four weeks from today. During this period, the applicants shall remove and lift the equipments listed in Annexure-5 from Common Utility Building to the AOH Building.