Law Web: Whether court can grant maintenance charges along with license fees as per O 15A of CPC?

From the aforesaid averments it is clear that the plaintiff has

admitted that it is liable to pay maintenance charges of Rs.25,000/- per

month during the period of Leave and Licence agreement. As stated above

the said agreement specifically refers to various amenities provided by the

licensor and with a view to enable the licensee to enjoy the same the plaintiff

is required to pay Rs.25,000/- per month.

10. The provisions of Section 7(14) of the said Act define the term

“standard rent”. The standard rent in the present case has not been

determined under Section 8 of the said Act. However reading of both the

agreements on the basis of which the plaintiff has been inducted as a

licensee indicates that besides the amount of licence fees, it is also liable to

pay maintenance charges and failure to pay maintenance charges gives a

cause of action to the licensor to terminate the licence.

In Puspa Sen Gupta vs. Susma Ghose (1990) 2 SCC 651 while

considering the provisions of West Bengal Premises Tenancy Act, 1956 and

the question whether the tenant was liable to pay amount of Rs.8/- per

month towards electricity besides Rs.32/- as rent, it was observed that the

expression “rent” was not defined under relevant Act. However on reading

the entire Act, the word “rent” would also include payment in respect of

amenities or services provided by the landlord under the term of tenancy. It

was observed that considering various provisions a tenancy would carry with

it amenities to be provided or services to be maintained by the landlord and

hence the amount of rent would include the amount of electricity charges.

Drawing support from the aforesaid observations it can be said in the facts of

the present case that the plaintiff was liable to pay maintenance charges

besides license fees. This has in fact been admitted by the plaintiff in its

written statement to the counter-claim. In that view of the matter the trial

Court was not justified in refusing to direct the plaintiff to pay Rs.25,000/-

per month towards maintenance charges. The impugned order therefore is

liable to be modified accordingly.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.3553 OF 2019

Daksha Jyotindra Patel Vs Big V. Telecom Pvt. Ltd.

CORAM : A. S. CHANDURKAR, J.

Judgment pronounced on : November 08, 2019

Rule. Heard finally with consent of counsel for the parties.

The challenge raised in the present writ petition is to the order

dated 01/01/2019 passed by the learned Judge of the Small Causes Court

thereby partly allowing the application moved by the present petitioners and

directing the respondent to pay an amount of Rs.10,000/- per month as

licence fees.

2. The facts in brief are that it is the case of the respondent-plaintiff

that it is a Company duly registered under provisions of the Companies Act,

1956. It has occupied the property owned by the petitioners-defendants on

Leave and Licence basis under an agreement dated 01/10/2011. As per that

agreement which is duly registered the respondent is liable to pay an amount

of Rs.10,000/- per month as licence fees. After every eleven months the

licence fees are liable to be increased by 7.5% per annum. According to the

plaintiff its servants and agents were not being permitted to enjoy the suit

property on the ground that the Company had not paid the license fees and

maintenance charges as demanded by the defendants. Hence it filed a suit

for a declaration that the defendants had violated the terms of the agreement

dated 11/10/2011 and that it was not entitled to collect maintenance

charges from the defendants. Other ancillary reliefs were also sought in the

said suit.

3. Written statement was filed by the defendants in which it was

denied that the servants and agents of the Company were being prevented

from enjoying the suit premises. In addition a counter-claim for recovery of

possession alongwith arrears of licence fees was also filed. It was pleaded

that the Leave and Licence agreement had expired on 20/06/2014 but the

vacant possession of the suit premises had not been handed over back.

Further a separate agreement for payment of maintenance charges dated

10/10/2011 had been entered into on the basis of which the plaintiff was

required to pay an amount of Rs.25,000/- per month for the amenities

provided in the suit property.

4. During pendency of the suit the defendants moved an application

below Exhibit-82 invoking the provisions of Order XV-A of the Code of Civil

Procedure, 1908 (for short, the Code) in which it was prayed that the

plaintiff be directed to deposit arrears of licence fees including maintenance

charges. It was stated that amount of Rs.40,446/- was liable to be paid per

month in that regard. In reply as filed it was denied that the plaintiff was in

arrears of the said amounts. The licence fees were being deposited regularly.

By the impugned order the learned Judge of the Small Causes Court partly

allowed the said application. The plaintiff was directed to pay licence fees of

Rs.10,000/- per month. The prayer for paying maintenance charges was not

granted on the ground that same required evidence to be considered. The

defendants being aggrieved by that part of the order refusing to direct the

plaintiff to pay maintenance charges have challenged the same.

5. Shri R. M. Sharma, learned counsel for the petitioners submitted

that the trial Court was not justified in refusing to direct the plaintiff to pay

maintenance charges especially when same was liable to be paid along with

licence fees. He referred to both the agreements dated 10/10/2011 and

submitted that it had been clearly stated in the agreement for payment of

maintenance that non-payment of that amount would also result in

terminating Leave and Licence agreement. He referred to the written

statement filed by the plaintiff to the counter-claim in which it was admitted

that maintenance charges of Rs.25,000/- per month were payable.

According to him the plaintiff could not be permitted to enjoy various

amenities while occupying the suit premises without paying the maintenance

charges. He placed reliance on the decision in Dr Rajesh s/o Niranjan

Singhania vs. Surajmal s/o Karnidanji Dhadiwas (Since deceased Thr. LRs)

2009(3) ALL MR 696 and submitted that the application at Exhibit-82 was

liable to be allowed in its entirety.

6. On the other hand Shri L. Khullar, learned counsel for the

respondent supported the impugned order. According to him under

provisions of Order XV-A of the Code the plaintiff was liable to pay only the

amount of licence fees and there was no power to direct payment of

maintenance charges as sought by the defendants. The trial Court rightly

observed that unless the evidence was recorded, no direction could be

issued to the plaintiff to pay maintenance charges. The learned counsel also

referred to the provisions of Section 7(14) of the Maharashtra Rent Control

Act, 1999 (for short, the said Act) to urge that there was no liability to pay

maintenance charges as claimed. It was therefore submitted that the

impugned order did not warrant any interference.

7. I have heard the learned counsel for the parties at length and I

have gone through the material documents placed on record. I have also

given due consideration to their respective submissions.

It is not in dispute that the plaintiff was put in possession on the

basis of the agreement of Leave and Licence dated 10/10/2011. As per this

registered agreement the plaintiff was liable to pay amount of Rs.10,000/-

per month towards licence fees. The amount of licence fees was to be

enhanced every after eleven months by 7.5% per annum. The provisions of

the said Act were made applicable to the aforesaid agreement. On the same

day, the parties also entered into another agreement of maintenance. This

agreement is also duly registered and the plaintiff has agreed to pay amount

of Rs.25,000/- per month as maintenance for enjoying the amenities such as

Air conditioner, wooden cup-boards, wooden tables, partitions etc. It was

further agreed that non-payment of maintenance amount could result in

terminating the Leave and Licence agreement. The trial Court has partly

allowed the application filed under Order XV-A of the Code and directed

payment of Rs.10,000/- per month as licence fees. The only question to be

considered is whether the maintenance charges could have been directed to

be paid under Over XV-A of the Code as prayed for by the defendants.

8. As per provisions of Order XV-A(1) of the Code in a suit for

eviction with or without arrears of rent or licence fees the Court can direct

payment of arrears up to the date of the order and also direct deposit of such

amounts for each succeeding month. Deposit of such amount does not have

the effect of prejudicing the claim of the licensor. Perusal of the aforesaid

provisions indicates that the Court is empowered to direct the licencee to

deposit “such amount” on account of arrears up to the date of the order.

The amount to be so deposited would depend upon the facts of each case. In

the present case the initial agreement requires the plaintiff to pay licence

fees of Rs.10,000/- per month. Subsequent agreement requires the plaintiff

to pay Rs.25,000/- per month towards maintenance charges in addtion. In

the written statement filed by the plaintiff to the counter-claim the

averments in paragraph 8 are material and the same read as under :

“ 8. …. It is not denied that Plaintiff agreed to pay maintenance charges

of Rs.25,000/- (Rs. Twenty five thousand only) per month and has given

advance cheques. It is not denied that Defendant No.1 has provided

furniture and fixtures in the suit premises including 2 Air Conditioners,

Water Tap, Wooden Cupboard, Partition, 3 Cabins, 1 Wash Room, 2

Pantrys, 1 small chamber. It is true that Plaintiff agreed to pay

maintenance charges of Rs.25,000/- per month during the period of

leave and license agreement. ”

9. From the aforesaid averments it is clear that the plaintiff has

admitted that it is liable to pay maintenance charges of Rs.25,000/- per

month during the period of Leave and Licence agreement. As stated above

the said agreement specifically refers to various amenities provided by the

licensor and with a view to enable the licensee to enjoy the same the plaintiff

is required to pay Rs.25,000/- per month.

10. The provisions of Section 7(14) of the said Act define the term

“standard rent”. The standard rent in the present case has not been

determined under Section 8 of the said Act. However reading of both the

agreements on the basis of which the plaintiff has been inducted as a

licensee indicates that besides the amount of licence fees, it is also liable to

pay maintenance charges and failure to pay maintenance charges gives a

cause of action to the licensor to terminate the licence.