2001(3) ALL MR 689
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.B. PALKAR, J.
Hemant Harish Thakkar And Ors. Vs. Balkrishna Appayya Shetty
Short Cause Suit No. 1186 of 1979
30th March, 2001
Petitioner Counsel: Mr. MILIND VASUDEO,Mr. C. S. BALSARA,by M/s DESAI & DIWANJI
Respondent Counsel: Mr. DILIP DALAL,Mr. A. BILAWALA,M/s. BILAWALA & CO.
(A) Civil P.C. (1908), O.13, R.2 - Partnership Act (1932), S.69 - Suit by partnership firm - Suit for return of business given under agreement - Averment in plaint that plaintiff, a registered partnership firm - Held, necessary for Plaintiff to plead and prove fact of registration - Contention that as suit filed by all the partners and as all of them had signed the agreement not necessary for Plaintiff to plead and prove registration - Contention unsustainable. (Para 11)
(B) Civil P.C. (1908), O.13, R.2 r/w O.18, R.2 - Partnership Act (1932), S.69 - Exclusion of documentary evidence - Suit by partnership firm - Registration certificate sought to be produced - Evidence already closed and arguments commenced - In proceedings in other court defendant had admitted fact of registration - In written statement averment in respect of registration not denied - Registration certificate required no formal proof and admissible on production - Moreover certificate disclosed in affidavit of documents and inspection also given - Certificate not produced earlier as Plaintiffs misapprehended that as suit filed by all the partners production of certificate not necessary - In circumstances, certificate permitted to be produced - Moreover Court had power to direct Plaintiff to produce certificate.
AIR 1980 Bom. 387, AIR 1986 Bom. 47 - Rel on. (Para 12)
(C) Transfer of Property Act (1882), S.53A - Applicability - Suit for return of business and premises - Defence that though defendant put in possession under conducting agreement later agreement for sale executed in its favour and thus possession protected U/S.53A - Defence not taken in written statement - Held, defence of part performance a mixed question of fact and law and must be pleaded - Moreover defendant had failed to pay consideration and perform his part of contract - Defendant had contended that contract was sham and bogus - Defence unsustainable. (Para 19)
Madan Gopal Kanodia Vs. Mamraj Maniram, AIR 1976 SC 461 [Para 12]
Ramnath Nandlal Dhoot & Co. Vs. B. R. Shroti, AIR 1980 Bombay 387 [Para 12]
Wasudeo Sonone Vs. Jagannath Ramlalji Jugale, AIR 1986 Bom. 47 [Para 12]
JUDGMENT :- This is a suit for return of business of hotel known as Parkway Restaurant along with premises bearing Shop No. 11 & 12, Chhadva Apartments, Chembur, Bombay 400 074, wherein the business is being run by defendant and for damages. Plaintiffs case in the plaint is as below:
2. Plaintiffs Nos. 1 to 4 carried on business in partnership in the name and style of Parkway Restaurant. The partnership firm is registered under the Indian Partnership Act and the premises belong to the Plaintiffs. Under an agreement dated 10.1.1977 entered into between the plaintiffs and defendant, defendant was allowed to conduct the business as licensee for a period of one year from February 1977 to 31st March, 1978 on the terms and conditions contained in the agreement.
3. Defendant failed to pay to the plaintiffs monthly compensation as agreed under the said agreement and the same had fallen in arrears. Defendant only paid a sum of Rs. 20,000/-. The plaintiffs by their letter dated 4.8.1977 informed the defendants that the said amount would be adjusted against royalty by appropriating Rs. 1000/- per month. Defendant was liable to pay Rs. 4500/- per month as per the agreement, but in view of his inability, the plaintiffs agreed to reduce compensation to Rs.3000/- per month right from day one. However, defendant failed to pay even the reduced compensation and the same fell in arrears. There were disputes between the parties and there was some correspondence exchanged through their respective Advocates. Defendant however continued to make default in payment of monthly compensation. Thereafter there were negotiations between the parties and with a view to putting an end to the controversy, the plaintiffs agreed to sell the entire business of Parkway Restaurant along with goodwill, furniture, fixtures, equipments, utensil including the ownership right of the premises for a consideration of Rs. 3,75,000/-. The terms and conditions of the agreement of sale were agreed to and Rs.30,000/- was paid by draft by way of security and a sum of Rs. 20,000/- was paid thereafter. The said sum of Rs.50,000/- was to be given credit against the total consideration. On execution of the agreement, the defendant paid a sum of Rs.25,000/-. There was a loan of Rs.60,000/- taken from Saraswat Cooperative Bank by the plaintiffs. Defendant agreed to repay that loan to the Bank by installments. Defendant also agreed to pay balance of Rs.2,40,000/- by half yearly installment of Rs.25,000/- and on payment of balance of Rs. 2,40,000/- with interest thereon, the plaintiffs were to execute the sale deed.
4. The first installment was payable on 15.10.1978 and the subsequent installments were to be paid on or before 15th day of every six months without any default. Defendant agreed that till the final sale deed is executed, defendant would hold the premises as agent of the plaintiffs and after payment of the entire price with interest, sale deed was to be executed. Defendant also agreed that in case of any default committed by him any loss suffered by plaintiffs would be borne by the defendant. Defendant also agreed that if defendant failed to pay installments for two consecutive terms, as also the monthly interest on the remaining balance, the plaintiffs would have right to determine the contract and would have the right to assign the business to any third party. In that case first preference was to be given to the defendant to find out an effective buyer. If the defendant was unable to bring a buyer within a period of three months, the plaintiffs would assign the business to some third party.
5. Defendant failed to pay the first half yearly installment due on 15.10.1978 as well as the installment due on 15.4.1979 and thus committed default for two consecutive terms. Defendant also committed default in payment of interest on balance of consideration and therefore, by letter of 7.6.1978, the plaintiffs informed defendant that he had failed to pay interest and the cheques issued by him were dishonoured. Saraswat Bank also demanded Rs.58,661.94 ps. with interest at 15% per annum from the plaintiffs and therefore by letter of 9.4.1979, the plaintiffs informed the defendant to pay installments and interest and also to disclose the liability of Saraswat Bank within three days and that in default, plaintiffs would terminate the agreement of sale and forfeit the entire amount paid by defendant. While replying this letter through his Advocate, defendant pretended to express surprise and contended that to his knowledge he had not executed any such agreement of sale in respect of the said restaurant and further contended that if at all such agreement is there, the plaintiffs must have obtained the same by fraud and misrepresentation. He also asked for inspection of the agreement or in the alternative to send him a copy of the said agreement and falsely contended further that he had a right to the premises as tenant and the so called conducting agreement was sham and colourable as there was no running business in January 1977. He further contended that he had already filed a declaratory suit and an application for fixation of standard rent in the Small Causes Court. He however admitted to have taken up the responsibility or payment of Bank Loan and contended that he had partly adjusted the said loan and the plaintiffs should not bother about the bank loan. In view of this the plaintiffs by their letter dated 3.7.1979 terminated the contract of sale and called upon the defendant to hand over business together with all assets. By his letter dated 11.7.1979 informed that has already filed declaratory suit in the Small Causes Court and he was taking steps to get the said agreement set aside by the competent Court on the ground of fraud and misrepresentation.
6. In view of the default committed by the defendant in re-payment of loan to Saraswat Bank, the Bank filed a dispute before the 3rd Coop. Court and the Court passed an order. Plaintiffs have filled this suit for recovery of business as well as the premises and damages at the rate of Rs.3000/- per month from the date of suit till realisation.
7. Contesting the suit, the defendant filed written statement contending interalia therein that the suit is liable to be stayed under section 10 of the Civil Procedure Code as the defendant has filed suit for declaration in the Small Causes Court and the matter in issue in the said suit is directly and substantially in issue in the present suit. In fact suit should have been filed for specific performance of contract and the suit as framed is liable to be dismissed summarily. This Court has no jurisdiction to entertain and try the suit as it is a suit between landlord and tenant.
8. The premises were purchased in 1975 by Harish Thakkar, the head of the joint family of the plaintiffs. He started a departmental store. However, he could not successfully run the said business and he approached the defendants to start a vegetarian hotel. He also agreed to decorate and to get it air conditioned and to obtain a beer bar licence and thereafter the conducting agreement was entered into. Defendant paid Rs. 50,000/- as deposit.
9. Plaintiffs could not arrange for finance, except for bank loan of Rs.50,000/- for renovation of the suit hotel and work remained incomplete for more than 8 months. Therefore, by letter dated 24.8.1979, the plaintiffs wrote to defendant to complete renovation work at his own cost initially and to start the business. Thereafter, defendant completed the renovation work by spending Rs.2.5 lakhs, obtained licence, and started business. Defendant is protected under the provisions of the Bombay Rent Act as there was no running business in the year 1977 when the so called conducting agreement was procured. After receipt of letter of the plaintiffs dated 9.4.1979, defendant contacted Advocate Shri. B. A. Shetty. Defendant is illiterate, does not know, reading and writing English. Plaintiffs are not a registered partnership firm and the suit is liable to be dismissed on that ground. Plaintiffs are not entitled to file this suit as the agreement provides that in case of default, defendant shall have the option to purchase.
|1. Whether the plaintiffs-firm “Parkway Restaurant” is registered under the Indian Partnership Act ? If not, what is its effect ?|| |
|2. Whether plaintiffs prove that by letter of 3rd July, 1979 there is valid and legally effective termination of the agreement dated 6th April, 1978 ?|| |
|3. If so, whether the defendant has no right to continue, manage or run the said business and is a trespasser in |
respect thereof as alleged ?
|4. Do plaintiffs prove that the defendant committed breach of the agreement dated 6th April, 1978 as alleged in para 7 of the plaint ?|| |
|5. Whether the defendant is bound and liable to hand over the business of “Parkway Restaurant” together with the assets to the plaintiffs ?|| |
|6. Whether the plaintiffs are entitled to recover damages and/ or compensation at the rate of Rs.3000/- per month ?|| |
|7. Whether the suit is premature as alleged in paragraph 5 of the written statement as there were no two consecutive defaults ?|| |
|8. To what reliefs the plaintiffs are entitled to ?|| |
As per the final order.
R E A S O N S
11. Issue No. 1 : This issue has been framed as it is alleged by the plaintiffs that they are carrying on business in partnership and the said firm is registered partnership firm, and the same is denied by the defendant. Plaintiffs have not led any oral evidence. Defendant alone entered the witness box and he has been cross-examined by plaintiffs. Initially when the evidence was closed and plaintiffs' Counsel declared that no oral evidence is to be adduced. The certificate of registration of Plaintiffs firm was not produced on record. However, when this point was raised, plaintiffs moved an application on 20.2.2000 for permitting the plaintiffs to produce copy of the certified extract of registration of firm on the ground that in the Small Causes Court proceedings, Defendant has admitted that the plaintiffs are partners of Parkway Restaurant, which is registered firm. It was also not disputed by the defendant in the Coop. Court proceedings. Plaintiffs were of the view that from the frame of the suit the contentions regarding the registration of the firm were not relevant. The document was referred to in the affidavit of documents and inspection was also given. The Court has ample powers in the interest of justice to take the document on record. It was also submitted that this document being a public document is not required to be proved by oral evidence of any witness. This application was strongly opposed on the ground that the issue was framed and the plaintiffs were aware that the burden to prove the same was on them. Under Order XIII Rule 2 of the C.P.C. it is not permissible to produce this document at this stage. There is no good cause shown. The stage of production of document is over. Defendant has never accepted that Parkway Restaurant is a partnership firm duly registered under the Indian Partnership Act. On this point also arguments were heard at the time of final hearing inasmuch as it was one of the issues involved for consideration. The first part of the argument that the plaintiffs were of the view that this document may not be required to be produced appears to have been based on some misapprehension. It is clear from the pleadings in the plaint that the suit is filed by plaintiffs as partners. The fact that Parkway Restaurant is a registered partnership firm is stated in the plaint and the issue arises out of this pleadings. Argument that the agreement is entered into by all the four plaintiffs, and suit is also filed by all plaintiffs and therefore it is not necessary to prove that the firm is a registered partnership firm is required to be rejected in view of the provisions of section 69 of the Indian Partnership Act. The provisions of section 69 sub-sec. (1) and (2) of Indian Partnership Act leave no room for doubt that it is necessary for the plaintiffs to plead and prove that Parkway Restaurant is a partnership firm and the firm is registered. To accept the contention of the learned Counsel for the plaintiffs that since all four persons who are partners have filed this suit on the basis of the agreement entered into by them with the defendant is to hold that the parties can be allowed to flout the provisions of section 69 of the Indian Partnership Act by all partners entering into agreement and filing suit only by mentioning the names of partners. This argument is therefore not at all sustainable in law.
12. However, the second part of the argument is that the plaintiffs have got the certified copy of the registration showing that the firm was registered on the date of presentation of the plaint and that the fact that Parkway Restaurant is a registered firm has not been disputed even by the defendant at some stage although he has taken a sommersault in the written statement in this suit, is required to be accepted. Defendant has also contended that he has no knowledge of the statements made in Rent Act proceedings and whatever is contended therein is stated by the Advocate without instructions from him must be discarded out right. Defendant is trying to put the entire blame on his then Advocate surprisingly even in the present written statement he has contended that he is tenant and therefore, not liable to be evicted and this suit should be stayed in view of the suit filed Small Causes Court. It does not lie in the mouth of the defendant that he is not aware as to what suit was filed in the Small Causes Court. Certified copies of the Small Causes Court proceedings are produced. There were two different proceedings and copies thereof are at Exh. Q and Q1. One was an application for fixation of standard rent and the other was a suit for declaration of tenancy. Admittedly there were proceedings in the Cooperative Court also to which plaintiffs and defendant were parties and in the written statement filed by defendant before the Cooperative Court, it was specifically admitted that Parkway Restaurant was a registered partnership firm registered under the Indian Partnership Act (Ekh.U). After considering the arguments of the learned Counsel at length, I am of the view that the request for production of the registration certificate is required to be allowed, as the said document requires no proof and is admissible in evidence on production and therefore, the said document is taken on record. In the written statement while replying to the concerned paragraph of the plaint, defendant has not even denied that Parkway Restaurant is a registered partnership firm. The registration certificate does not require any formal proof and can be admitted in evidence on production thereof. To accept the contention of defendant that this document should not be taken on record, would mean that Court should assist the defendant in denying a fact which he had earlier admitted and should not allow the truth to come on record only because of a lapse on the part of the Plaintiffs to produce the document at appropriate stage, even though it was produced before the hearing was concluded and arguments had just commenced. The argument cannot be accepted. The learned Counsel for defendant placed reliance on a ruling of the Supreme Court reported in A.I.R. 1976 S.C. page 461, Madan Gopal Kanodia v/s Mamraj Maniram & ors. A reference to the judgment shows that what is held by the Supreme Court is that Order 13 Rule 2 of the C.P.C. is merely to prevent belated production of documents, so that it may not cause injustice to defendant. This provision clearly clothes the Court with discretion to allow production of documents, if good cause is shown. This lapse on plaintiffs part is due to some misapprehension that suit being filed by all four partners, who entered into agreement, it is not necessary to produce the certificate of registration. The documents referred to in the case before the Supreme Court were produced pursuant to an order of the Court on the application of the defendant. There was an order condoning delay and directing defendant to record admission or denial. Defendant never took any objection to the filing of the document but complied with the order of the Court in regard to their admission or denial of the documents. The original Khata and the original rokad had been filed along with plaint and in the circumstances, it was held that the Court exercised its discretion under Order 13, Rule 2 C.P.C. to condone the delay and allowed the plaintiffs to produce the documents and there was no error at all. In A.I.R. 1980 Bombay page 387, Ramnath Nandlal Dhoot & Co. v/s. B. R. Shroti & ors., it was held that :
"Civil P.C. (1908). O.13 R.2 - Exclusion of documentary evidence - Evidence not to be excluded when it is helpful in deciding controversy. (Bombay High Court (Original Side) Rules. 1957. R. 174)
By reading R.174 of Bombay High Court (O.S) Rules. 1957, and 0.13 R.2, CPC, it is clear that, to a large extent, there is direction to the Court not to receive in evidence documentary evidence (i) which was already in possession or power of the party desiring to produce, (ii) which should have been but has not been disclosed in the affidavit of documents and (iii) which is required to be disclosed in the supplementary affidavit of documents but has not been disclosed. The direction, however, is naturally not absolute because there are likely to be cases in which in spite of the documentary evidence being in possession or power of either party, for some reasons it is not disclosed in the affidavit of documents or supplementary affidavit of documents. In such cases, certain checks are provided before documentary evidence is received. The party seeking to tender the document in evidence has to show good cause to the satisfaction of the Court. "Good cause" is that which is adequate, sound and genuine ground or reasons. What is good cause will depend upon the facts and circumstances of each case."
In that case defendant wanted to produce before the High Court documents which were neither disclosed in the affidavits of document nor produced at or before the settlement of issues. It was at a stage when plaintiffs closed their case and examination-in-chief of defendants witness was in progress, that the document was produced and it was held after considering the nature of document and pleadings that the production should be allowed. There was no design or strategy in not disclosing the document earlier and the same was helpful in deciding the controversy. In the present case, plaintiffs are on better footing as the document was disclosed in the affidavit of documents and inspection was also given. Had it been contended that on the date of the lodging of the plaint the firm was not registered, it would have been a different matter altogether. In another judgment reported in A.I.R. 1986 Bombay, page 47 (Wasudeo Sonone & anr. v/s. Jagannath Ramlalji Jugale), this Court has held that expression "at any stage" means at any stage before the case is closed for judgment. In this case the document was produced before the matter was closed for judgment. More over it was pointed out in that case that as regard Order XVIII Rule 1 Sub-Rule (4) as applicable in the State of Maharashtra, there is nothing in this rule which affects the jurisdiction of the Court for reasons to be recorded to direct any party to examine any witness at any stage. Therefore, in this case I am of the view that not only the document has to be accepted on it being tendered, but going a step further, I would say that the Court has powers to direct plaintiffs to produce certificate of registration subject only to allowing defendant to raise any contention in respect of that document or even to claim right of further cross-examination in respect of that document which right was not claimed herein. It must be remembered that ultimately procedure is handmaid of justice and is to be used to further the cause of justice and not to create obstruction by resorting to hyper technical interpretation of the procedural law ignoring the intention of provision. I find that there is absolutely no force in the contention of defendant that this document should not be taken on record despite its production before argument was over and to hold that Parkway Restaurant is not proved to be a registered partnership firm and to non suit the plaintiffs on that ground. Therefore, issue No. 1 is answered accordingly.
13. Issue Nos. 2, 3, 4, 5, & 7 : All these issues are interconnected and therefore, it is necessary and convenient to decide them together. Letter dated 3.7.1979 terminating the contract is on record. It was also replied to by defendant. If plaintiffs found are justified in terminating the contract, then obviously defendant has no right to continue in the premises. It is necessary to refer to the oral evidence in order to decide this issue.
14. As pointed out earlier, defendant is the only witness examined in this case and his evidence has to be scrutinised minutely. A bare reading of the entire evidence of the defendant, clearly shows that defendant has no regard for truth whatsoever. He can go to any extent and make any statement which is false to his knowledge even though he is on oath. He has made such statements throughout the proceedings and in his evidence with impunity. The first thing the defendant has stated on entering the witness box is that he is ready and willing to pay Rs. 2,40,000/- along with interest accrued from 1986 till this date. This is not stated in the written statement. This is also not stated anywhere in the correspondence and his earlier stand was that it is not an agreement of sale. It was (or may have been) obtained from him by practising fraud. He is a tenant and he has filed a suit in the Small Causes Court. Realising futility of his stand of being a tenant, he invented a new story that whatever is stated in some correspondence or in the proceedings in Small Causes Court is done by his Advocate and it was not on his instructions. He does not know English. He cannot read and write English and is therefore not aware what is stated in correspondence and pleadings. The statement of defendant that he does not know English is also not reliable for the simple reason that all his signatures are in English and when a person is habituated to signing in English, he has to show something more than making a bare statement that he does not know English. I am therefore not inclined to accept that defendant does not know English. The defendant has knowingly made all the statements in the pleadings in Small Causes Court as well as in the Cooperative Court. He claimed to be the tenant. He tried to avoid his liability under the agreement by denying it in toto. It does not lie in his mouth now to say that he is ready and willing to pay Rs. 2,40,000/- and even if such statement is made today, it does not lead to any conclusion that in fact he is ready to pay and much less was earlier ready and willing to pay Rs. 2,40,000/-. Suffice it to say that he had been willing to pay, he would have made such an offer or would have deposited the amount in any of the proceedings. No such offer is made even in the written statement and therefore, the statement which defendant is now making on oath that he is ready to pay Rs. 2,40,000/- is an eye wash and it is doubtful whether he desires to make that payment. The obvious intention is some how or the other to save skin and therefore, I take it as statement made just to create a show that defendant is ready to pay and to perform his part of the contract. This part the statement falls short of making out a case that defendant was through out ready and willing to perform his part of contract.
15. Similarly defendant's statement that he spent Rs. 2,50,000/- for converting departmental stores into restaurant can also not be believed because there is absolutely no evidence but for the interested words of defendant. Defendant is a businessman who is running a hotel and therefore, he must be maintaining account book and the least that he should have done is to produce account book in support of his contention that he has spent Rs. 2,50,000/- for renovation work. He should have produced bills of the persons engaged for renovation work or of the materials purchased for renovation and therefore, defendant's statement that he spent Rs. 2,50,000/- is not at all worthy of reliance. When defendant was asked in cross examination regarding the first installment he took about two minutes to answer and in spite of that he was unable to answer the question and after a long pause he said that he has not paid the second installment. For the amount which was due to Saraswat Bank and which the defendant had agreed to pay, Saraswat Bank was required to initiate proceedings in the Cooperative Court which defendant contested and he has made payment only after the award was passed by the Cooperative Court. Although defendant made an attempt to claim tenancy rights, he has admitted that he had written to the Corporation to include his name as conductor and also admitted that thereafter in the licence his name was incorporated as conductor. The licence is at Exh.C. Initially compensation agreed was Rs. 4500/- per month. However, defendant could not make that payment and therefore, it was reduced to Rs. 3000/-, but even that amount was not paid. He was shown notice dated 7.2.1998 which was sent to him by the plaintiffs. Initially he tried to deny receipt of this notice, but subsequently admitted that his Advocate has given reply to the notice and because of this, the document was admitted in evidence. Apart from Parkway restaurant, defendant was also running a canteen at Mulund and one canteen at Matunga. He claims to have filed income tax return only once. It is difficult to accept how he does not regularly file returns, if he has been assessed to income-tax once. In order to avoid further answers probably he stated that he does not remember the year in which he had filed the return once. He has produced balance sheet and admitted that he was maintaining accounts. However, he has not produced any account book.
16. The suit agreement was arrived at after preparing a draft of it. Draft agreement was signed by him. The draft is produced on record and in spite of this, defendant contends that the agreement is sham and bogus and he never entered into such a contract and his signature may have been obtained fraudulently. Although he admitted that he had taken over liability of Saraswat Bank, he did not make payment and therefore, dispute had commenced before the Cooperative Court. He admitted not to have paid interest for May, June and July 1978. His explanation is that such interest was not payable which is contrary to the agreement. He had the audacity to say that when Saraswat bank filed case in the Cooperative Court, he had already made payment of all the dues to the Saraswat Bank and also claimed that he is having an order from the Cooperative Court holding that the amount was already paid and the case filed was false and thereupon he produced an order of the Cooperative Court, which is entirely different from what he stated. The said order is at Exh.J. He admitted ultimately that the Cooperative Court passed an order against him as well as the Plaintiffs holding them jointly and severally liable for payment of Rs. 62,373/- to the Saraswat Bank. He could not say whether in the Cooperative Court it was his case that the agreement of sale is bogus, sham and colourable. He admitted that after receipt of the Suit notice he approached Advocate and asked him to draft a reply and reply was sent. He however does not know as to what was the reply. In spite of the notice and the reply being on record, he has the audacity to say further that he had not gone to Advocate's office for preparing reply to the termination notice.
17. The defendant was adjudged insolvent on 1.4.1986. One Biharilal Bajaj had filed an application against him for adjudging him insolvent. However, when asked about Biharilal Bajaj, defendant went to the extent of saying that he does not know any one by name Biharilal Bajaj. Then he admitted that he had made an application for setting aside adjudication of insolvency through Mr. Somane Advocate and had filed affidavit-in-support of the Notice of Motion for annulment of insolvency. Having admitted this, he had no alternative than to state that now he remembers that he used to take money from Biharilal Bajaj. He might have given Hundi to Biharilal Bajaj and thereafter stated that he had drawn two bills of exchange as proprietor of Parkway Restaurant in favour of Biharilal Bajaj and admitted copies of the bills. He admitted that date on which he had given the two hundies to Biharilal Bajaj he was not proprietor of Parkway Restaurant and as such he had himself given hundies claiming to be proprietor of Parkway Restaurant when in fact he was not a proprietor of Parkway restaurant. When asked about the proceedings in the Small Cause Court, it was stated that he did not file any application under the Rent Act and then admitted that Mr. Shetty was his Advocate and further stated that he never asked Mr. Shetty to file case in the Small Cause Court. He however admitted that the written statement in this suit was filed as per his instructions, but he does not know whether in the present written statement, he has admitted that since proceedings are pending in Small Causes Court, present proceedings be stayed under section 10 of the C.P.C. He then admitted that he used to attend Small Causes Court on some dates, that he has referred to and relied upon the proceedings in the Small Causes Court in his affidavit. Therefore he was called upon to produce documents mentioned at Sr. No. 55 and 56 of his affidavit. Even after certified copies of the Small Causes Court proceedings were shown to him, his reply was that he does not remember to have filed any proceedings in Small Causes Court and then again he changed his version and stated that he now remembers that he had filed a case in the Small Causes Court and even then he does not remember what type of case was filed. He does not remember whether he had sworn affidavit before the Small Causes Court that he was likely to change his Advocate and therefore, matter be adjourned. When Xerox copy was shown to him he admitted that it is his signature and then admitted that he remembers to have appointed Billawala & Co. as his Attorneys and does not even remember to have appointed Mr. Sajjar H. Patel, as his Advocate to appear in Court. He then stated that he does not remember as to what had happened in Small Causes Court after he engaged Billawala & Co. because after he engaged Bilawala & Co., he had moved an application that his suit pending before the High Court be placed before the Small Causes Court and in order to avoid this, he stated that he does not remember whether he filed an affidavit in Small Cause Court that the suit pending before the High Court be placed before the Small Cause Court. He does not remember whether he moved the application before the Small Causes Court for joining Receiver as party to the Small Cause Court proceedings. He does not remember whether Small Cause Court proceedings are still pending or disposed of. He claims to have paid all the installments and therefore, he was asked when he was denying the agreement itself, where was the question of making payment of installments and he replied that he is not aware as to what was the case before the Small Cause Court. All this evidence of the defendant fortifies the conclusion that defendant is a totally unreliable witness. The statement of defendant that he is ready to pay Rs. 2,40,000/- is obviously made in order to avoid a decree, if possible. I am sure that it is made without any intention of complying with the same. It is thus clear that the plaintiffs have validly terminated the contract and that defendant has no right to continue and run the business. Defendant has also committed breach of the agreement of sale. Defendant having breached the agreement of sale, and plaintiffs having terminated the same, the plaintiffs are entitled to take over the business and consequently to the possession. The suit cannot be said to be premature as it is filed firstly as the defendant has committed breach and even otherwise it is terminated by notice.
19. One more aspect of the matter which has been argued needs to be mentioned at this stage. It was contended on behalf of the defendant that defendant was conducting the restaurant as per the agreement and thereafter there was agreement of sale in his favour. Therefore, he was already in possession and he continued in possession in part performance of the contract. He has now stated that he is ready to pay Rs.2,40,000/- with interest and therefore, he is ready and willing to perform his part of the contract. His possession is therefore required to be protected under section 53A of the Transfer of Property Act. The argument is mentioned only to show how it is taken in the written statement. Protection of section 53A of the Transfer of Property Act is not a mere question of law. It is a mixed question of law and fact. Necessary facts constituting the defence of part performance are required to be pleaded. More over section 53A protects possession of a transferee who is in possession and who is likely to be dispossessed without any fault on his part. A reference to section 53A clearly shows that it protects possession of a transferee who has performed his part of the contract and is ready and willing to perform remaining part of his contract. It is not a case wherein the remaining part of the contract was only to get the sale deed executed and registered. Defendant had to pay a substantial amount. He was liable to pay interest which he failed to pay. He has failed to pay installments and interest and had committed breach of the contract. Section 53A does not assist a person who himself is guilty of breach of contract. Further more, defendant having denied existence of contract and having contended at some stage that it is sham and bogus is not entitled even to contend that he is entitled to protection of section 53A of the Transfer of Property Act. In view of this position, I am not referring to the various authorities cited on section 53A of the Transfer of Property Act, because although the principle and the law laid down are indisputable, the defendant is not entitled to claim any protection of section 53A of the Transfer of Property Act.
20. Damages are claimed at Rs. 3000/- per month which was the monthly compensation agreed in the conducting agreement. Plaintiffs are entitled to claim that much in any case. Therefore, the suit will have to be decreed. In fact, defendant having resorted to false and vexatious defence, it is a fit case where compensatory cost should have been awarded. However, since there is no issue on that account and there were no arguments advanced, I am refraining from passing any order to that effect.
22. In view of this decree, it is not necessary to continue the Receiver after passing of accounts. Receiver shall stand discharged on passing accounts. Plaintiffs shall continue in possession as owners of the Parkway Restaurant and not as agents of the Receiver after Receiver is discharged.