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Rustom K. Amuyan Vs. Manu Subedar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Appeal from Order No. 325 of 1969
Judge
Reported in(1970)72BOMLR264; 1970MhLJ537
AppellantRustom K. Amuyan
RespondentManu Subedar
DispositionAppeal dismissed
Excerpt:
.....business as tenant in premises--enforceability of such agreement by way of injunction.;after a tenant's contractual tenancy is terminated he is entitled to continue as statutory tenant subject to the protection of his rights as provided by the bombay rents, hotel and lodging house rates control act, 1947. section 12 of the act does not give him any other rights and if he was enjoying any other privileges, they are not protected. therefore an agreement between a landlord and a tenant not to permit any other person from doing the same business as tenant in the premises has no connection with the tenancy as such, and cannot be enforced by way of an injunction.;b.m.r. housing society, ltd. v. combs [1051] 1 all e.r. 16 and narayandas v. sarasvatibai (1967) 69 bom. l.r. 622, referred to...........under headnote ' conditions governing statutory tenancy', which says that a tenant is a statutory tenant and is entitled to the benefit of all the terms and conditions of the original contract of the tenancy, so far as they are consistent with the provisions of the act. the illustrations given show clearly that the conditions; enforced are such as were intimately connected with the right of occupation and enjoyment of the premises. the provisions of the english rent act are slightly different. 'conditions of tenancy' in english kent acts of which the tenant gets the benefit, include positive as well as negative covenants. but it is held in b. 'm. b. housing society, ltd. v. combs [1051] 1 all e.r. 16 that conditions of tenancy must be those which relate to the subject matter of the.....
Judgment:

Patel, J.

1. This appeal is filed by the plaintiff against the dismissal of a Notice of Motion for injunction taken out by him. The respondent is a trustee of Lotus Trust which owns the property known as Lotus Cinema on Dr. Annie Besant Road, Bombay-18. He is Chairman of the board of trustees. The construction of the Cinema house was completed somewhere about 1957. It appears that there were negotiations between the plaintiff and the trustees for conducting a canteen in the Cinema House about that time. On March 15, 1957, the respondent addressed a letter to the plaintiff as follows:

With reference to your letter dated 14th of March, you are under a mis-apprehension. The other stalls in the theatre would deal with other things like books, clothes or fancy articles, but the eatables and drinking required by the Cinema visitors would be confined to the Conductor of the canteen on the terms and conditions which we have fixed with you.

We strongly disapprove of your attitude in prolonging the negotiations after everything is fixed.

If you are still ready, as you inform us in your letter, please call at this office early.

Yours faithfully,

FOR THE LOTUS TRUST

Sd/- Manu Subedar,

Chairman

Thereafter a formal agreement between the parties was executed. This agreement gave the right of conducting the canteen to the Contractors i.e. Asian Stores and Restaurant which was apparently a partnership on the terms mentioned therein. It has been described as an agreement of licence to conduct the said canteen in the premises of the Lotus Cinema, in the name of Lotus Canteen and Restaurant. It appears that recently there have been disputes between the partners of the business and a suit is pending in the City Civil Court, for dissolution and accounts of the partnership. By an order in the said suit a preliminary decree has been passed by which the plaintiff is allowed to continue doing business on certain terms until the winding up is completed. It appears that the trustees of the Trust, feeling that because of the disputes between the partners, services at the canteen were not properly rendered, terminated the licence, and, I understand that a suit is pending on the Original Side of the High Court for recovery of possession of the premises. Another suit has been filed by the plaintiff in the Small Causes Court for injunction, restraining the trustees from obtaining possession of the properties, his allegation being that the agreement is one of tenancy and the partnership is entitled to protection under the Bent Act. As these proceedings have been taken, the trustees started building other stalls with the intention of having the canteen either of their own or through someone else. The plaintiff, therefore, instituted the present suit for an injunction restraining the defendants trustees from starting a rival canteen, on the basis of the letter dated March 15, 1957, referred to above. The Notice of Motion was taken out by the plaintiff for obtaining an interim injunction. The learned Judge rejected the same on two grounds (1) that the actual agreement between the parties duly signed did not contain the term mentioned in the letter above referred to and (2) in any event compensation would be adequate remedy and injunction, therefore, was not called for.

2. In this appeal it is urged that the learned trial Judge was in error in dismissing the Notice of Motion. It is argued that as long as the plaintiff is entitled to remain in the property, whether by reason of the contract between the parties or under any of the provisions of the Bent Restrictions Act, the plaintiff is entitled to the benefit of the assurance contained in the letter above referred to. It is argued that though the agreement between the parties is described as licence, in effect and substance having regard to the principles for determining the question, it is a tenancy and the plaintiff is, therefore, entitled to remain in possession of the property and as long as he remains in possession, he is entitled to the benefit of the assurance.

3. For the purpose of the present appeal, I will assume without deciding, that the agreement between the parties constituted a tenancy. Even so, in my view, the plaintiff' would not be entitled to enforce his so-called monopoly rights even if the provisions of the Rent Act are applicable.

4. In the first place though this letter had preceded the actual contract between the parties, such a term was not embodied in it. If the parties intended to be bound by any such term, surely it would have been incorporated in the actual agreement. Truly speaking it is impossible to regard it as a term of the contract between the parties. Even if it is assumed to be part of the agreement, in my view it will not make any difference.

5. What Section 12 does is to protect the possession of the tenant and no more, which was undisputed by the defendant. True that after a tenant's contractual tenancy is terminated he is entitled to continue as statutory tenant subject to the protection of the rights as provided by the Rent Act. Section 12 does not give the tenants any other rights. It prevents the landlord from recovering more than the standard rent and permitted increases. Section 23 requires the landlord subject to a contract to the contrary to keep the premises in tenantable repair. Section 24 requires the landlord to continue essential supplies or services enjoyed by the tenant in respect of the premises. Similar provisions are contained in Sections 26 and 27. On the other hand Section 12 imposes on the tenant the liability of paying the standard rent and permitted increases and of observing such terms and conditions of the tenancy as are consistent with the provisions of the Act. If he was enjoying any other privileges, they are not protected.

6. I have been referred to the observations in 'Woodfall on landlord and tenant' (at p. 1566) under headnote ' Conditions governing Statutory Tenancy', which says that a tenant is a statutory tenant and is entitled to the benefit of all the terms and conditions of the original contract of the tenancy, so far as they are consistent with the provisions of the Act. The illustrations given show clearly that the conditions; enforced are such as were intimately connected with the right of occupation and enjoyment of the premises. The provisions of the English Rent Act are slightly different. 'Conditions of tenancy' in English Kent Acts of which the tenant gets the benefit, include positive as well as negative covenants. But it is held in B. 'M. B. Housing Society, Ltd. v. Combs [1051] 1 All E.R. 16 that conditions of tenancy must be those which relate to the subject matter of the tenancy. Anything collateral to the tenancy cannot be enforced. In the lease of the tenant a condition was embodied that the tenant would be entitled to occupy the premises only so long as he served a particular person. This was treated as a personal obligation, collateral to the tenancy and, not a condition of tenancy, though stated to be so. It was not enforced and the landlady's application to evict the tenant on his leaving the service was disallowed. There is difference in the wording of our Act. Even if it were similar, the ratio of the above case would not have applied and the plaintiff would not be able to enforce the alleged term.

7. An agreement not to permit any other person from doing the same business in the premises is something which cannot have any connection with the tenancy as such, though it may be that as long as the said assurance lasts the profits of the tenant may be larger. The assurance contained in the letter but not embodied in the contract between the parties is in my view merely a personal obligation of the landlord and has no connection with the tenancy as such and cannot be enforced, I do not think it could have been enforced even if it were part of the contract itself.

8. My attention was then invited to the affidavit made on behalf of the respondent, para. 15, where it appears to imply that the respondents have not obtained police and municipal licences for the proposed stalls inasmuch as they say that the plaintiff is not concerned whether any such licence is applied for or not. It is argued that unless such a licence is obtained, the respondents have no right to do business to the detriment of the plaintiff. In Narayandas v. Sarasvatibai : AIR1968Bom280 we have held that on this ground the plaintiff would have no cause of action to complain. The provisions in the Municipal Act as well as the Police Act for obtaining of a licence by any one intending to commence a stall or a canteen, are not for the purpose of safeguarding monopolies or business interest of rival traders, but for the protection of the public. So far as the Municipal Act is concerned, it must see whether municipal regulations intended to safeguard public health are properly complied with. The Police licence is intended to sec that activities are legal. These licences have no relation to any thing that the plaintiff may do or may not be able to do.

9. Reliance was placed particularly on the case Butler (or Black) v. Fife Goal Company, Limited? where the statute under consideration was entirely a different statute. Its provisions were enacted for the benefit of the persons situated in the position of the plaintiff there and it was, therefore, held that the plaintiff had a cause of action. In Narayandas Kanuga's case we have carefully considered this case.

10. Apart from this, the learned Judge has also held that the compensation would be an adequate remedy. It is difficult to differ, under the circumstances of the present case, from that view of the learned Judge. In the, result, therefore, I find that the appeal has no merit and it, therefore, must be dismissed without notice to the respondent.


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