Chinthadripet Fish & Perishabl v. C.R.Kasturi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) WEDNESDAY, THE 06TH DAY OF JUNE 2018 THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN O.A.No.513 of 2017 in C.S. No.374 of 2017 Chinthadripet Fish & Perishable Products Traders Society No.24, Arunachala Naicken Street, Chinthadripet, Chennai 600 002 Rep.by its President ... Applicant/Plaintiff Vs

1. C.R.Kasturi W/o. Late C.R.B.Ramesh Babu E-2, Yelan Apartments, No.10, Railway Colony 4th Street, Aminjikarai, Chennai 600 029.

2. Sarayou Basanth W/o. Late C.R.Basanth Babu E-2, Yelan Apartments, No.10, Railway Colony 4th Street, Aminjikarai, Chennai 600 029.

3. B.Saaru Rupa D/o. Late C.R.Bsanth Babu E-2, Yelan Apartments, No.10, Railway Colony 4th Street, Aminjikarai, Chennai 600 029.

4. B.Hema Rupa D/o. Late C.R.Basanth Babu E-2, Yelan Apartments, No.10, Railway Colony 4th Street, Aminjikarai, Chennai 600 029.

(*) 5. J.M.H.Imran Khan, S/o. J.M.Haroon, No.7, Vijayaraghava Lane, T.Nagar, Chennai - 600 017.

...Respondents/Defendants

((*) 5th defendant impleaded as per order dated 12.6.17 in A.No.3046/2017)

Original Application praying that this Hon'ble Court be pleased to grant an ad interim injunction restraining the respondents and their men, agent or anybody claiming through them from in any manner disturbing the peaceful possession and enjoyment of the schedule mentioned property hereunder by the plaintiff and its members pending disposal of the above suit.

This Original Application coming on this day before this court for hearing the court made the following order:- This Court had an occasion to consider the rival contentions advanced by Mr.A.K.Sriram for M/s.A.S.Kailasam & Associates, the learned counsel for the Plaintiff and Mr.S.R.Ragunathan for Mr.P.S.Amalraj, the learned counsel for the 5th Defendant.

2. In OA.Nos.512 and 513 of 2017, common orders had been passed on 13.09.2017. The present order has to be read as an addendum to the said order dated 13.9.2017.

3. In the order dated, 13.09.2017, in paragraphs 23 and 24, this Court had held as follows:-

23. For the above reasons, though OA.No.512 is to be dismissed, as nothing survives, with respect to OA.No.513 of 2017, seeking protection for possession of the members of the Plaintiff Society, the said protection shall be extended only when the Applicant/ Plaintiff gives a complete list of members of the Society, who are in actual occupation of the shop premises and the details of such occupation and the details of the rental amounts payable by each one of them. A further affidavit will also have to be filed by the Plaintiff Society with respect to the default in payment of the rent if any or payment of the rent in full by each one of the shop owners.

The monthly rents are directed to be deposited into the court by the Plaintiff Society on behalf of each and every shop owners. This is necessary because even under the agreement, there is an undertaking that they would pay the monthly rent on daily or weekly basis. Consequently, there shall be an order of interim injunction, for the present, restraining the Respondents 1 to 5/Defendants 1 to 5 from disturbing the possession by the Plaintiff and its members. Further orders regarding OA.No.513 of 2017 shall be passed on full and proper disclosure of the details as stated under by the Plaintiff Society:- a) List of members of the Plaintiff Society and the names and addresses of the shops in which they are in possession.

b) Daily/weekly/monthly rents payable by each member of the Plaintiff Society.

c) The last date or month for which rents were paid and whether there are any arrears to be paid.

d) An undertaking that the Plaintiff Society would collect the rents and deposit the same every month into the court.

24. In the result, OA.No.512 of 2017 is dismissed, as nothing survives. OA.No.513 of 2017 is kept pending. For furnishing the information and details as stated above, call on 20.9.2017. Further orders will be passed in OA.No.513 of 2017 based on the details being disclosed by the Plaintiff Society. Call on 20.9.2017."

4. Pursuant to the above directions to furnish further information by the Plaintiff, an affidavit had been filed by G.R.Appa Raj, the President of the Plaintiff Society, along with a typed set of papers, containing annexures, relating to rental receipts from the period from

01.04.2017 to 20.09.2017. In the affidavit, a list of members of the Plaintiff Society and the names and addresses of the shops, in which they are in possession have also been given. It has been stated that there are 19 Members. There are 19 shops. Each shop also has initials of the Members as the name of the shop. The name of the first Member had been given as N.Rajasekaran and his shop no is Shop No.1 and his trade name is NRR. Similarly, details of other 18 shops have also been given.

5. It is also stated in the affidavit that the suit property is also used by certain Members, who are not the Members of the Plaintiff Society, but who have been permitted for many decades to come and sell fish. They are from different Villages.

They bring fish to the suit property/market and sell the same. The agents of the 1st to 4th Defendants used to collect a sum of Rs.50/- per day per person. However, these vendors do not come on a daily basis. They also do not come on regular basis. It has been further stated that the Plaintiff has been collecting a sum of Rs.50/- per person per day and a list of persons, from whom they are collecting, has also been given in the affidavit.

6. It has been further stated that the Members of the Plaintiff Society were paying a sum of Rs.10 per box of fish/other products as daily rent to the 1st to 4th Defendants. These receipts are given on daily basis. It has been further

stated that the Members of the Plaintiff Society are not in default of any rent as on 2.5.2017. However, the agents of the 1st to 4th Defendants have not been collecting the rent from 2.5.2017 in view of the fact that a sale deed had been executed by them in favour of the 5th Defendant. The deponent of the affidavit has stated that he undertakes to collect the money from each Member on a daily basis and deposit the same into the Court every month on or before 5th of every succeeding month. It has also been stated that the 1st to 4th Defendants used to send two cleaners to ensure cleanliness and they would work in the suit property/market from 5.00 a.m. till 1.30 p.m. The Plaintiff used to engage two more cleaners. It has been stated that all the four cleaners are paid by the Plaintiff Society. They are paid a sum of Rs.15,000/- each per month at the rate of Rs.500 per cleaner per day.

7. The 5th Defendant was invited to give his comments on the said affidavit. Accordingly, an affidavit had been filed by the 5th Defendant. He claimed to be a bona fide purchaser for valuable consideration without notice of the agreement put forth by the Plaintiff. According to him, he has to be paid a sum of Rs.2,85,000/- towards rent per shop at the rate of Rs.15,000/- per month for 19 shops. He has also claimed rent per box of fish/other merchandise at Rs.30/-. On an average of 25 boxes per shop per day, he has

claimed a sum of Rs.4,27,500/-. He has also independently claimed rent from prawn vendors at Rs.200/- per day from 10 prawn vendors, amounting to Rs.60,000/- per month. He has also claimed payment for the prawn cleaners at Rs.1000/- per month amounting to Rs.10,000/-. He has also claimed payment for 30 fish cutters at Rs.1500/- per month amounting to Rs.45,000/-. The 5th Defendant, in all, has claimed a sum of Rs.8,27,500/- as total rent payable to him per month.

8. The 5th Defendant also claimed that he is eligible to receive these rental amounts from April 2017. He has further claimed that the Plaintiff Society has no right to collect the rent. He has further stated that as the owner of the premises, he has every right to collect the rent. He has further stated that he would not disturb the possession of 19 Members mentioned in the affidavit filed on behalf of the Plaintiff Society, otherwise than due process of law. He has further claimed that the property has actually been sublet to various other persons. He has further stated that the list of Members furnished by the Registrar of Societies, Madras Central, reflects a different set of Members. He has further stated that the thatched roof over the place, where the daily vendors bring fish for sale, had been removed by the Plaintiff Society. A new thatched roof has to be put up by him in his status as owner. He has further stated that it is the liability of the occupants to pay the rents to him.

9. I have heard the arguments advanced and also considered the rival contentions.

10. This Court had directed an undertaking to be given by the Plaintiff Society that they would collect the rent and deposit the same every month into the Court. Accordingly, an affidavit has been filed that they would collect the rent and deposit the same every month into the Court. But, unfortunately, the order had been interpreted literally and the Plaintiff Society has stopped with filing such an affidavit. The Plaintiff has not deposited the collections made by them from April 2017 into the Court.

11. It is the contention of the Plaintiff that there is no direction that the rents must be actually deposited into the Court. It is the contention of the learned counsel for the 5th Defendant that the 5th Defendant, having purchased the property and which sale has also been admitted by the Plaintiff, as owner of the property, has every right to collect the rent. However, this is countered by the learned counsel for the Plaintiff, stating that though the 5th Defendant may be the owner, he is not the landlord.

12. The above contention is rejected by me. By no stretch of imagination can the Plaintiff Society assume the role of landlord vis-a-vis each one of the Members mentioned in the affidavit filed by G.R.Appa Raj, the President of the Plaintiff Society. The Society had never collected the rent

at any earlier point of time. The Plaintiff Society is only a group of individuals joined together in view of commonality of profession and place of work. Each one of the Members is a tenant under the owner of the suit property/ market. The Society has been formed to create a congenial space to ply their trade. It is a creation by law primarily to identify the actual tradesmen. Even according to the affidavit, the agents of the 1st to 4th Defendants have been collecting the monthly rents. Once the 1st to 4th Defendants had sold the property to the 5th Defendant, the right to collect the rent automatically flows to the 5th Defendant.

13. It is the contention of the learned counsel for the Plaintiff that there has been no attornment of tenancy in favour of the 5th Defendant. The very fact that the Plaintiff had chosen to implead the 5th Defendant as a party Defendant to the suit subsequent to institution of the suit itself shows that they have recognised that the 5th Defendant has right, title and interest over the suit property. They have also recognised that the 5th Defendant is a necessary and proper property to the litigation. Consequently, it does not lie in the mouth of the Plaintiff to deny the right of the 5th Defendant to collect the monthly rents.

14. The Plaintiff Society had not deposited any amount collected by them. There is also a possibility of Members walking away from the Plaintiff Society. In such a

case, the Plaintiff Society can never collect the rents. Law places an obligation on a tenant to pay rents. I am convinced that the Plaintiff Society is not driven by bona fide objects. Rather, exploring methods to circumvent the obligation to pay rent seems to be the primary object. This cannot be permitted.

15. The Plaintiff, by their denial of the title and right to collect the rent, of the 5th Defendant, are only putting a superfluous contention. They have claimed a right of pre-emption as against the 1st to 4th Defendants. However, the Plaintiff Society do not have any registered agreement with the 1st to 4th Defendants. At any rate, the right of preemption lies only with individual Members and not with the Plaintiff Society as an unit.

16. Consequently, in further reference to the order dated 13.09.2017, on examination of the affidavits filed, I hold that the Plaintiff would be entitled to protection of possession only if they continue to pay the monthly rent to the 5th Defendant. This monthly rent has to be paid to the 5th Defendant. The undertaking given by the 5th Defendant that they would not disturb the possession of each one of 19 Members mentioned in the affidavit except with due process of law is recorded by this Court. However, he can also enter into separate or fresh agreements with the said 19 Members.

17. The 5th Defendant cannot be prevented from

initiating appropriate proceedings to exercise his right, which has accrued to him, as owner of the suit property. The 5th Defendant can also put up a thatched roof, which was said to have been removed by the Plaintiff Society. The Plaintiff Society should also cooperate with the 5th Defendant in furnishing true and correct details with respect to the other Members, who come to the suit property to trade in fish and similar products on a daily basis. It is made clear that the Plaintiff Society cannot prevent the 5th Defendant from exercising his right as owner.

18. Consequently, there will be an order of injunction in OA.No.513 of 2017, restraining the 5th Defendant from interfering, except with due process of law, with the possession of 19 Members only mentioned in the affidavit of G.R.Appa Raj, dated 21.9.017. The 5th Defendant has every right to collect the daily/monthly rents. He has right to initiate legal proceedings for eviction if rents are not paid. He also has right to initiate legal proceedings to fix fair rent for the portions in occupation of the tenants. The 5th Defendant has also to pay necessary salary to the cleaners and other workers. He has also to maintain the suit property, including putting up a new thatched roof. He has to provide a clean environment in the suit property not only for the traders, but also for the general public. If any legal proceedings are to be initiated by him, which come

under the category of 'due process of law' he must bring them to the notice of this Court. This does not imply that he should seek permission from the Court. But, since the suit is pending, proprietary demands that he informs this court any parallel proceedings which are initiated.

16. Accordingly, though this application is allowed and injunction is granted, it is only with a caveat that the 5th Defendant has every right to initiate appropriate legal proceedings exercising his rights as owner of the suit property. No costs.

Sd/.C.V.K.J.

06.06.2018 //Certified to be a true copy// Dated this the day of 2018 JJ 07/06.2018 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.