Indo Shares And Fin Trade Pvt. Ltd. v. Bse Ltd.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION Writ Petition NO. 8765 OF 2015 Indo Shares And Fin Trade Pvt. Ltd.

...Petitioner

Versus

BSE Ltd.

...Respondent

....

Mr.Sean Wassoodew a/w. Ms. Vijaya Ingule, Advocate for the Petitioner.

Mr. P.S. Dani, Senior Advocate a/w. Ms. Minal Parab i/b. M/s. Bilawalla & Co. for the Respondent.

....

CORAM : R. G. KETKAR, J.

DATE : 23rd June, 2016 P.C.

1.

Heard Mr.Sean Wassoodew, learned Counsel for the petitioner and Mr. P.S. Dani, learned Senior Counsel for the respondent, at length.

2.

By this Petition under Article 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 19.4.2014 passed by the learned Judge, presiding over Court Room No.14 of Small Causes Court at Mumbai below Exhibit-33 in R.A.E. & R. Suit No.477/737 of 2007 as also the judgment and order dated 13.9.2014 passed by the Appellate 1 / 7

Bench of Small Causes Court at Mumbai in Revision Application No.211/2014. By order dated 19.4.2014, the learned trial Judge rejected the application made by the petitioner, hereinafter referred to as the 'defendant', for staying the proceedings of R.A.E. & R. Suit No.477/737 of 2007 on the ground of pendency of the suit instituted by the petitioner on Original Side of this Court, namely, Suit No.2737/2000. The petitioner has challenged the termination of its membership by the respondent in this Court.

3.

The petitioner has instituted Suit No.2737/2000 on Original Side of this Court inter alia praying for declaration and for money decree. The petitioner has also sought declaration that the decision of the Stock Exchange, Mumbai declaring the plaintiff as a defaulter through letter dated 6.7.2000 is totally bad and illegal. The suit is pending and it is not in dispute that no interim order is passed by this Court in favour of the petitioner.

4.

During pendency of the suit, the respondent herein has instituted R.A.E. Suit No.477/737 of 2007 in Small Causes Court at Mumbai for possession of office No.125 admeasuring 2 / 7

192 sq. ft. (carpet area) on 1st floor in "Phiroze Jeejeebhoy Towers" situate at Dalal Street, Fort, Mumbai-400023 (for short, 'suit premises') inter alia on the ground that the petitioner has been declared as defaulter on 6.7.2000. By letter dated 10.2.1998, the petitioner requested the respondent for allotment of the suit premises. The petitioner gave undertaking to abide by the building terms and conditions and such other conditions from time to time regarding the suit premises and that they will surrender the office place to the exchange when declared defaulter from membership. The respondent contended that as the suit premises was given to the defendant as a member of the Stock Exchange. As he he is declared defaulter, the respondent is entitled to recovery of possession.

5.

During pendency of the suit filed in Small Causes Court, the learned trial Judge framed issues on 5.1.2009. During pendency of the Suit, the petitioner filed application at Exhibit-33 for staying the proceedings of the suit filed in the Small Causes Court. By order dated 19.4.2014, the learned trial Judge rejected the application. Aggrieved by that decision, the petitioner instituted Revision Application before the Appellate 3 / 7

Bench of Small Causes Court which was dismissed on the ground of maintainability. It is against these orders, the petitioner has instituted the present Petition under Article 227 of the Constitution of India.

6.

In support of this petition, Mr.Wassoodew submitted that the petitioner has instituted the suit on the Original Side of this Court challenging the action of the respondent declaring them as defaulter and the suit is pending. He submitted that on 5.1.2009, the learned trial Judge framed issues and the issue Nos.2, 4, 7 cannot be answered till the suit instituted by the petitioner on Original Side is decided. These issues are directly and substantially in issue in the suit instituted on the Original Side of this Court as also in the suit instituted by the respondent. He, therefore, submitted that till such time the suit on the Original Side is decided, the proceedings before the Small Causes Court deserves to be stayed.

7.

On the other hand, Mr. Dani supported the impugned orders. He submitted that the respondent is not disputing the status of the petitioner as a tenant. The issue raised in the suit filed in Small Causes Court and the issue raised in the suit on 4 / 7

the Original Side of this Court are not directly and substantially in issue. He, therefore, submitted that the learned trial Judge rightly rejected the application and the Appellate Court rightly held that the revision is not maintainable.

8.

I have considered rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record.

9.

In paragraph-7, the learned trial Judge observed that the plaintiff has alleged that the petitioner herein (defendant) has failed and neglected to pay the rent, maintenance and electricity charges and also committed several breaches of its rules, bye-laws and regulations. The plaintiff has claimed eviction of the defendant by invoking Section 15 of the Maharashtra Rent Control Act,1999 (for short, 'Act'). The plaintiff has also sought decree of arrears of rent and other outgoings amounting to Rs.1,59,932.80.

10.

In paragraph-9, the learned trial Judge observed that the petitioner herein has prayed for various reliefs in Suit No.2737 of 2000 instituted on the Original Side including 5 / 7

declaration amongst other prayers.

11.

In paragraph-10, the learned trial Judge observed that the matter in issue in the present suit is not directly and substantially in issue in the previously instituted Suit. It was further observed that the decision of the earlier Suit has no effect on the decision of the present Suit.

12.

In paragraph-12, the learned trial Judge prima facie has observed that there is nothing on record to show that the tenancy rights in respect of the suit premises is attached to membership of the petitioner herein. There is nothing on record that the matter in issue in a suit filed in the Small Causes Court is directly and substantially in issue in previously instituted suit.

13.

As noted earlier, the petitioner has challenged the action of the respondent declaring it as a defaulter through letter dated 6.7.2000. It is not in dispute that no interim order is operating in favour of the petitioner in that suit. In view thereof, I do not find that the learned trial Judge committed any error in holding that the issue raised in the suit filed on the 6 / 7

Original side and the issue raised in the suit filed in Small Causes Court is not directly and substantially in issue. Hence, no case is made out for invoking powers under Article 227 of the Constitution of India. Petition is dismissed. Order accordingly. ( R. G. KETKAR, J.) Deshmane (PS) 7 / 7