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.
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 infact 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.
Bombay High Court
WRIT PETITION NO.3553 OF 2019
CORAM : A. S. CHANDURKAR, J.
Judgment pronounced on : November 08, 2019
Citation: 2020(6) MHLJ 313
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.
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 infact 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.
11. Hence for aforesaid reasons it is held that the plaintiff is liable to pay license fees of Rs.10,000/- per month as well as maintenance charges of Rs.25,000/- per month. These amounts be deposited in the trial Court within a period of three months from today in terms of the impugned order which stands modified accordingly. Needless to state that this deposit would abide by the final adjudication of the respective rights in the suit.
Rule is made absolute in aforesaid terms with no order as to costs.
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