Mr.Shabbir Mohammed Sayed v. Mrs.Noor Jehan Mushter Shaikh And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION Civil Application NO. 495 OF 2018 IN Civil Revision Application NO. 372 OF 2017 Mr.Shabbir Mohammed Sayed ...Applicant

Versus

Mrs.Noor Jehan Mushter Shaikh and others.

...Respondents

....

Mr. Gauraj Shah I/b. Abhaysingh A. Shinde, Advocate for the Applicant. Mr. A.N. Nasikwala, Advocate for Respondent No.1. ....

CORAM : R. G. KETKAR, J.

RESERVED ON : 06/08/2018 PRONOUNCED ON: 16/08/2018 ORDER :

1.

Heard Mr.Gauraj Shah, learned Counsel for the applicant and Mr. A.N. Nasikwala, learned Counsel for respondent No.1, at length. 2.

By this application, the applicant has prayed for recalling the findings recorded in paragraphs-12 and 15 of the order dated 17.7.2018 passed in Civil Revision Application No.372/2017 as regards Section 52 of the Transfer of Property Act, 1882 (for short 'T.P. Act') and Section 26 of the Maharashtra Rent Control Act, 1999 (for short, 'Maharashtra Rent Act').

3.

By order dated 17.7.2018, C.R.A. No.372/2017 filed by the applicant challenging the judgment and order dated 16.11.2016 passed by the learned Judge, Court Room No.21 of the Court of Small Causes at 1 / 11

Bombay below Exhibit-14 in Execution Application No.386/2016 as also the judgment and order dated 7.4.2017 passed by the Appellate Bench of the Small Causes Court at Bombay in Misc. Appeal No.505/2016. By these orders, the Courts below have dismissed the application Exhibit-14 taken out by the applicant, hereinafter referred to as the 'obstructionist' inter lia praying for (i) holding that warrant of possession taken out by respondent No.1, hereinafter referred to as 'decree-holder', is beyond the decree, is illegal and unexecutable against the obstructionist and the same be declared as null and void; (ii) the obstruction of the obstructionist in respect of warrant of possession taken out by the decree-holder be recorded and the decree-holder be directed to take action according to the provisions of law; and (iii) order dated 21.9.2016 in Execution Application No.386/2016 being beyond decree be declared as null and void. 4.

In paragraph-9 of that order, the submission of Mr. Shah that the Appellate Court considered Section 52 of the T.P. Act and held that the Deed of Assignment dated 1.2.2014 is hit by the principles of lis pendence and that the deed is compulsorily required to be registered as per Section 17 of the Registration Act, 1908, was noted. The submission based on Section 55 of the Maharashtra Rent Act was also noted. 5.

In paragraph-11, the submission of Mr. Nasikwala based on Section 26 of the Maharashtra Rent Act and Section 52 of the T.P. Act were 2 / 11

noted. In paragraph-12 it was noted that the obstructionist has relied upon Agreement of Assignment dated 1.2.2014 executed by one Akhtar Habibullah Shaikh in his favour. Clause 1 thereof recited that obstructionist had paid Rs.9,40,000/- to Akhtar Habibullah Shaikh and upon receipt of that amount he has agreed to transfer and assign the premises along with its furniture, fixtures and fittings to the obstructionist. It was noted that the Agreement of Assignment was executed on 100 Rupees stamp paper and is not a registered instrument. Defendant No.3 landlord is not party to the agreement. It is in that context it was observed that the Appellate Court rightly observed that the transaction is hit by Section 52 of the T.P. Act and that the Agreement of Assignment was required to be registered as per Section 17 of the Registration Act, 1908.

The Appellate Court also held that obstructionist is not claiming any independent right, title and interest in the suit premises and is claiming through defendant No.3. As defendant No.3 did not challenge the decree passed by the Appellate Court on 1.7.2016 directing defendant No.3 to hand over possession of the suit premises to the decree-holder, the obstructionist is also bound by that decree though he is not party in the appeal.

6.

In paragraph-15, the documents relied upon by the obstructionist were referred and it was observed that the Agreement of 3 / 11

Assignment dated 1.2.2014 executed by Akhtar Habibullah Shaikh in favour of the obstructionist is hit by Section 26 of the Maharashtra Rent Act. Even otherwise, it is not a registered instrument and this transaction is hit by the principle of lis pendence embodied in Section 52 of the T.P. Act. 7.

The present application is taken out inter alia for recalling the findings recorded in paragraphs-12 and 15. The reasons are set out in paragraph-6 of the application which is to the following effect : "6. The judgments and notification in support of the proposition that transaction of the obstructionist is not hit by Section 52 of the Transfer of Property Act is evidenced by the Order and judgment dated 17th July, 2018 passed in Writ Petition No.7040 of 2013 with Writ Petition 8042 of 2014 r/w Notification dated 5th August, 2015 bearing No.4/450/15/lis pendense/1302 and the Division Bench Judgment passed in 2016(6) BOM CR

262. Hereto annexed as EXHIBIT "D", "E" and "F" are the judgment dated 17th July, 2018, Notification dated 5th August, 2015 and judgment reported in 2016(6) BOM CR 206."

8.

Insofar as the reliance placed on the order dated 17.7.2018 passed in Writ Petition No.7040/2013 read with notification dated 5.8.2015 and the Division Bench judgment of this Court in the case of Prakash Gobindram Ahuja v. Ganesh Pandharinath Dhonde and others, 2016(6), Bom. C.R. 262 is concerned the same were not produced at the time of hearing of C.R.A. No.372/2017. No argument was advanced based upon the judgments and notification referred in paragraph-6 of the application. Fortunately Mr. Shah had argued the C.R.A. and he accepts 4 / 11

this position. In other words, the applicant though has not argued the points at the time of hearing of C.R.A. is proposing to agitate these points in the present application for recalling the findings recorded in paragraphs-12 & 15. In my opinion, the application is thoroughly misconceived. 9.

During the course of hearing, Mr.Shah invited my attention to Sections 26 and 56 of the Maharashtra Rent Act as also the Full Bench decision of this Court in Tangerine Electronics Systems Private Limited v. Indian Chemicals and others, 2004(2) Mh.L.J. 305. Mr. Shah submitted that Section 56 of the Maharashtra Act gives overriding effect to the other provisions contained in the Maharashtra Rent Act, which includes Section 26. Section 26 of the Maharashtra Rent Act reads thus : "26.

In absence of contract tenant not to sub-let or transfer or to give on licence.-- Notwithstanding anything contained in any law for the time being in force, but subject to any contract to the contrary, it shall not be lawful for any tenant to sub-let or give on licence the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein: Provided that, the State Government may by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases any premises or class of premises other than those let for business, trade or storage to such extent as may be specified in the notification."

10.

A perusal of Section 26, extracted hereinabove, shows that notwithstanding anything contained in any law for the time being in force, 5 / 11

but subject to any contract to the contrary, it shall not be lawful for any tenant to sub-let or give on licence the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. 11.

Section 15 of the Bombay Rent Act reads thus : "15.

In absence of contract to the contrary, tenant not to sub-let or transfer or to give on licence.-- (1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein and after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, for any tenant to give on licence the whole or part of such premises:

Provided that the State Government may by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases or the giving on licence any premises or class of premises and no such extent as may be specified in the notification.

(2) The prohibition against the sub-letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub-section (1), shall, subject to the provisions of this sub-section, be deemed to have had no effect before the 1st day of February, 1973, in any area in which this Act was in operation before such commencement;

and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order a Court, any such sub-lease, assignment or transfer of any such purported sub-lease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in sub-section (1) as purported sub-lessee, assignee or transferee and has 6 / 11

continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes, and any tenant who has sub-let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of subsection (1) of section 13. The provisions aforesaid of this sub-section shall not affect in any manner the operation of subsection (1) after the date aforesaid." 12.

The language employed in Section 26 of the Maharashtra Rent Act and Section 15 of the Bombay Rent Act is some what identical. Persons inducted as licensees or inducted as sub-tenants prior to 1.2.1973 are protected. In the present case, admittedly the Deed of Assignment is executed on 1.2.2014. That apart, even the obstructionist has not brought on record any agreement between the landlord and the tenant permitting the tenant to sub-let or give on licence the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. In the order dated 17.7.2018 it was noted that the obstructionist paid Rs.9,40,000/- to Akhtar Habibullah Shaikh for transferring and assigning the suit premises along with its furniture, fixtures and fittings to the obstructionist.

As per Section 17 of the Registration Act, 1908, the Agreement of Assignment was required to be registered. It was further held that as the obstructionist is claiming through defendant No.3 and as defendant No.3 did not challenge the decree passed by the Appellate Court on 1.7.

Appellate Court though he is not party in the appeal. 13.

In paragraph-15, the documents relied by the obstructionist were considered. It was observed that the obstructionist did not explain in what circumstances Akhtar Habibullah Shaikh was inducted in the suit premises.

14.

This brings me to the submission based on Section 56 of the Maharashtra Rent Act. Section 56 of the Maharashtra Rent Act reads thus : "56. Right of Tenant and Landlord to receive lawful charges.- Notwithstanding anything contained in this Act, it shall be lawful for,-- (i) the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any sum or any consideration, as a condition of the relinquishment, transfer or assignment of his tenancy of any premises;

(ii) the landlord or any person acting or purporting to act on behalf of the landlord to receive any fine, premium or other like sum or deposit or any consideration in respect of the grant, or renewal of a lease of any premises, or for giving his consent to the transfer of a lease to any other person."

15.

It is material to note that Section 18(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, 'Bombay Rent Act') precludes the landlord or any person acting or purporting to act on his behalf receiving any fine, premium or other like sum or deposit or any consideration other than the standard rent or the permitted increases and contravention of this provision is punishable with imprisonment for a term which may extend to six months and is also punishable with fine. We are 8 / 11

not concerned with sub-sections (2) to (4) thereof in the present case. Section 19(1) of the Bombay Rent Act lays down that save in cases provided for under the proviso to section 15, it shall not be lawful for the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any sum or any consideration as a condition of the relinquishment, transfer or assignment of his tenancy of any premises. Sub-section (2) thereof lays down that contravention of sub-section (1) is punishable with imprisonment for a term which may extend to six months and shall also be punished with fine which shall not be less than the sum or the value of the consideration received by him. The philosophy of Section 56 of the Maharashtra Rent Act is to legalize receiving the consideration by the tenant and landlord stipulated in clauses (i) & (ii) respectively, which otherwise under the Bombay Rent Act was impermissible and in fact was an offence.

16.

Before the Full Bench the question of law that fell for consideration was as under :

"whether the interest of the tenant of non-residential premises to which the Maharashtra Rent Act applies is attachable and saleable in execution of the decree against the tenant?"

17.

The Full Bench referred to the provisions of Sections 26 and 56 of the Maharashtra Rent Act as also Section 60(1) proviso (kc) of Code of Civil Procedure, 1908 (for short, 'C.P.C.'). In paragraph-32, the Full Bench 9 / 11

extracted Section 56 and observed that said provision legitimatises the acceptance of consideration for relinquishment, transfer or assignment of tenancy of any premises.

18.

In paragraph-33, it was held that interest of the tenant in the non-residential premises to which Maharashtra Rent Act applies is attachable and saleable in execution of the decree against the tenant. In fact in paragraph-34 the Full Bench observed thus "

........ Though the learned Single Judge in the order of reference observed that by virtue of Section 56 of Act that starts with non-obstante clause, the limitation or restriction imposed in Section 26 is lifted, in our judgment, this may not be correct approach to the construction of Sections 26 and 56 of the Act of 1999 as the first thing to be ascertained would be whether both can be read harmoniously . There should be clear inconsistency between the two before giving an overriding effect to the non-obstante clause. Be that as it may, in the light of the issue posed before us it is not necessary to go into the question whether Section 56 overrides Section 26 because one thing is clear that Section 56 indicates in no manner of doubt that the interest of the tenant in the non-residential premises to which the Act of 1999 applies is saleable and the tenant has the disposing power of the said property for his benefit."

19.

In view thereof, the decision in Tangerine Electronics Systems Pvt. Ltd. (supra) does not advance the case of the obstructionist. Hence, civil application fails and the same is dismissed. 20.

At this stage, Mr. Shah orally prays for continuation of adinterim order dated 14th July, 2017 for a period of 12 weeks from today. He 10 / 11

assures that within two weeks from today, the applicant and all adult family members residing with him/using the suit premises will file usual undertaking in this Court, after giving advance copy to the other side incorporating therein that:

[a] they are in possession and nobody else is in possession of the suit premises;

[b] they have neither created third party interest nor parted with possession of the suit premises;

[c] they will hereafter neither create third party interest nor part with possession of the suit premises;

[d] in case they are unable to obtain suitable orders from the higher Court within 12 weeks from today, they will hand over vacant and peaceful possession of the suit premises to the respondents; 21.

In view thereof, notwithstanding dismissal of the Civil Application, subject to the applicant filing undertaking in the aforesaid terms within two weeks from today, this order shall remain stayed for the period of 12 weeks from today. It is expressly made clear that in case the undertaking is not filed in the aforesaid terms within two weeks from today and/or in case applicant commits breach of any of the conditions of the undertaking, the respondent will be at liberty to execute the decree. Order accordingly.

22.

List the application for reporting compliance on 06.9.2018. (R.G. Ketkar, J.) Pradipkumar Prakashrao Deshmane Date: 2018.08.16 14:39:10 +0500 Pradipkumar Prakashrao Deshmane 11 / 11