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Judgment
There has been one round of battle in Court in O.S. No. 11708 of 1989 in the City Civil Court, Madras, which culminated in the final disposal
in CRP. No. 220 of 1991 by Nainar Sundaram, J. as he then was, in the following words:-
The members of the plaintiff are traders who were carrying on business in the old building called ""Spencer''s Super Market"". The admitted petition
is that they are to be accommodated in the new complex that is being constructed by the defendant, and until then, their possession and carrying on
business in the old building ""Spencer''s Super Market"" are not to be disturbed. The (sic.) occasion for the plaintiff to come to this Court, projecting
the prayer extracted above, as per the allegations in the plaint is that the existing car parking area is being blocked by the defendant. Whether any
car parking area was specifically provided and made available to the members of the plaintiff, pursuant to any binding arrangement or contract is a
question which need not strain the mind of this Court at this juncture.
I heard Mr. Krishna Srinivasan, learned Counsel appearing for the defendant, saying that so far as possession and carrying on of the trade by
the member of the plaintiff in the old building ""Spencer''s Super Market"" are concerned, that will not be disturbed by the defendant till they are
accommodated in the new complex With regard to the car parking area, learned counsel for the defendant, says that whatever car parking area is
available and existing as on date, that can be utilised by the customers of the members of the plaintiff. In my view, recording of the above statement
is sufficient safeguard for the members of the plaintiff at this juncture. However, Mr. T.V. Ramanujam, learned counsel for the plaintiff says that
there are very many remarks in the fair order of the lower appellate Court which are unwarranted and which require deletion. We can only take
them as part of the reasoning''s of the lower appellate court for deciding the interlocutory application and nothing more. The suit as such shall
certainly be tried on merits, uninfluenced by these remarks, Apart from recording what has been stated before Court by the learned counsel for the
defendant as above, I do not find, any interference in revision is called for. Being so, this revision is dismissed. No costs.
The cause of action of the instant litigation is traceable, however, in letters issued by the first defendant/respondent to the plaintiff/appellant,
attention to which has been drawn by learned Counsel for the appellant as well as learned counsel for the respondents. The important among them
are letters dated 6.3.1993, 27.3.1993 and 7.4.1993. By letter dated 6.3.1993, the first defendant/respondent treated the plaintiff/appellant as one
which had some arrangements with it (the first defendant/respondent) dated 12.8.1982 under which the plaintiff/appellant was permitted to display
and sell products from the, Supermarket called ""Spencers Super Market"" belonging to the first defendant/respondent as a Concessionaire. This
letter also stated that in early January 1993 there has been some discussions about the shifting to Spencers Plaza along with Spencers Super
Market. It further reads:
As decided earlier and as communicated in our letters dated 14.8.1987 and 26.7.1988, you will also have to shift to Spencer Plaza along with
Spencer''s Super Market if you wish to continue to sell your products.
We are enclosing a plan of the II Floor of Spencer''s Super Market at Spencer Plaza, the space shown to you during. our discussion in January as
clearly marked out in this plan.
Could you please make arrangements to shift your products from the present location, which will shortly be required for demolition and to display
and sell them from the new area provided for you by the 31st of March 1993?
Please note that as per our latter dated 26.7.1988, there will be an additional maintenance charge for services, such as Air-conditioning, etc. that
are being provided at Spencer Plaza. This will presently be approximately Rs. 350 per Sq.ft. of space occupied by you.
We are enclosing a copy of this letter as well as the plan indicating the space provided for you. We request you to please sign these copies as a
token of your acceptance and return to us for our records.
Please note that this spaces being provided without prejudice to our right to recover outstanding of sales commission and service charges of Rs.
32,13,758/- which is outstanding against your name as on 31st January, 1993.
When, however, in reply to the said letter, the Plaintiff reminded that there has been an order of this Court in CRP. No. 220 of 1991, the first
defendant''s letter dated 27.3.1993 acknowledged about the said order of the Court, but stated inter alia as follows:-
We are unable to understand your reference to various options regarding the space to be provided to you for display and sale of your products
from Spencer''s Super Market as a licensee. In our letter of 6th March, we have clearly delineated the space provided for you. Please note that
this space has been given to you bearing in mind the letter and spirit to our letters dated l4.8.1987 and 26.7.1988 and subsequent correspondence
as well as the Order of the Hon''ble High Court of Judicature at Madras in CRP. No. 220/90.
As you are aware, we have shifted our Spencer''s Super Market to the ground and Second floor of the newly constructed Spencer plaza. You will
have to take only the space provided for you as per our letter of 6th March 1993 if you wish to continue your operations offering goods to the
customers of Spencer''s Super Market.
We will be grateful if you could please confirm your acceptance to us. If you fail to do so by the date mentioned in our letter of 6th March, 1993,
we will assume that you are no longer interested in continuing to display and sell your products form Spencer''s Super Market.
In the third letter dated 7.4.1993, the first defendant communicated to the plaintiff/appellant as follows:-
We regret to note that you have not shifted, your products to the space provided, for you as defineated in the plan attached to our letter of 6th
March, 1993, nor nave you communicated to us your intention to do so. We therefore presume that you are no longer interested incurring'' on
business from Spencer''s Super Market.
If you fail to move to the new space provider (sic) by 21st April, 1993 the agreement under which you are (sic) laying and selling your products
from Spencer s Super Market as a concession a will stand terminated. from that date. Kindly note that thereafter you will have no right of access
to the current space occupied by you to carry on the display and sale of your products.
You are also aware that the entire structure known as the Old Spencer''s Building, a portion has been provided to you to display and sell your
products, has to be demolished to enable the construction of phase II of Spencer Plaza.
Your are therefore called upon to either move your products and display and sell them from the new space provided for you on the 2nd floor of
the Spencer''s Super Market at the newly constructed Spencer Plaza or to remove them from the current premises by 21st April, 1993 as we shall
be handing over the old building for demolition any time after that date.
Reiterating the facts now according to the plaintiff/appellant, the relationship of landlord and tenant was created and existed between them until the
earlier dispute started in the City Civil Court, Madras, and how finally the controversy appeared to be settled by the order of this Court is CRP.
No. 220 of 1991, the plaintiff/appellant has in the instant suit, sought for a declaration that the notice in the letter dated 7.4.1993 issued by first
defendant is illegal and arbitrary, and for a permanent injunction restraining the defendants or their men, agents, servants staff, security personal,
officers or any other person or persons through or under them from demolishing or otherwise damaging or interfering with the structure stability,
fittings and enjoyment of the plaintiff wherein a business ''Kapoor Lamp Shade Company'' is being carried on. The plaintiff/appellant has moved an
application for temporary injunction in which the trial court first ordered interim injunction, but has under the impugned order vacated the same. It is
disclosed in the affidavits filed on behalf of the defendants in the application for temporary injunction that the first defendant has entered into some
sort of arrangement with the second defendant under which the second defendant has undertaken to put up a superstructure on condition of sharing
the ownership to the extent specified in the agreement, that they have, accordingly, put up a superstructure and that when a stage has come for the
second phase of reconstruction of the supermarket, the plaintiff/appellant has been asked to shift to the alternative accommodation in the second
floor of the new building put up by them. The defendants have, however maintained that the status of the plaintiff is that of a licensee under which
he has been only permitted to carry on a business of his own on a profit sharing basis with the first defendant. According to them, since the fist
defendant has decided to save his business confined to the second floor of the new building the plaintiff has to shift to the second floor and, it
cannot have any gather accommodation in any other part of the building. In other words, according to the defendants, the plaintiff is a licensee and,
since it is a licensee, it does not have any claim of a lessee with the first defendant as the less or. The trial court has accepted the case of the
defendant and found as follows:-
The agreement dated 12.8.1982 itself describes the same only as an agreement of licence. As per clause 4 the applicant snail permit the first
respondent or their representatives to inspect the goods sold by them and as per clause 3, the applicant will ensure that the articles sold by them
shall be of good quality in keeping up the reputation of the first respondent. Clause 6 provides that tee applicant agrees to vacate and give a
peaceful possession of the space allotted on receiving six months notice in writing. Above all, as per clause 8, the applicant had agreed to pay the
first respondent a commission for the display and sell their products in the showrooms as detailed below on the sales turnover effected in the
showroom, including the orders booked at'' the showroom and a further amount will be payable to the first respondent as determined for services
and other amenities afforded to the plaintiff. A commission of 13% of the sales turnover to the value of Rs. 30,000/- per month and a commission
of 5% of the sale turnover over and above the value of Rs. 30,000/- per month in the showroom subject to a minimum guaranteed commission of
Rs. 3000/- per month has to be paid by the plaintiff to the first respondent before the 10th of every succeeding month. Clause 10 provided that the
applicant will have access to the space allotted to them only at the sufferance of the first respondent and the first respondent will have the right to
lock up the outer door of me premises according to their office hours. Clause 14 has provided that bills must be issued for all items sold to enable
the security staff of the first respondent to check and the plaintiff will have to provide monthly statement of accounts of all the sales made and
orders booked in the showroom and this is also subject to verification of the Internal Audit Staff of the first respondent for payment of commission
on all items sold. As per clause 19, the plaintiff had agreed that goods directly competing with the goods sold by the first respondent will not be
displayed in their furnishing showrooms. It is thus seen that as per these clauses, the plaintiff has been permitted to carry on their business in the
allotted shops and other ornamental lands in the space allotted to them by the first respondent and they are prevented from doing any other
business and for the business carried on by them also they were under an obligation to pay commission to the first respondent as detailed in the
agreement. The condition with regard to the quality of the goods, the right of inspection by the first respondent with regard to the sales effected by
the plaintiff, and the right of the first respondent to close the door of the plaintiff after office hours are all things which would show that the plaintiff
was not given an interest to the property but only permitted to make use of the property of which the legal possession continued with the first
respondent and therefore it is a licence. When the agreement between the plaintiff and the first respondent discloses that it is only a licence granted
by the first respondent, the exclusive right given to the plaintiff for possession over the property by itself is not sufficient to hold that it is a lease, the
intention is not to create a lease but only grant a licence is evident from the agreement. Therefore, the contention of the plaintiff that he is a'' tenant
and therefore until evicted by due process of law, his possession should be safeguarded and he cannot be directed to vacate the premises is
without merits. As I have already observed, the plaintiff has not been asked to vacate the premises once for all; but he has been requested to shift
to another place where the Spencer''s Super Market has been shifted, namely, to the Spencer''s Plaza and therefore it cannot be stated that plaintiff
has made out a prima facie case to grant injunction..
Coming to the balance of convenience, the development of the premises has been entrusted to the second respondent by the first respondent
involving more than Rs. 60 crores: Eight out of fourteen members of the Association, in which the plaintiff was a member have shifted their business
to the alternative accommodation provided by the first respondent is seen from the additional counter filed by the first respondent. When they have
shifted their business to the alternative accommodation provided by the first respondent in spite of the Association in which they were members,
namely, the South India Association of Traders at Spencers have filed a suit would go to show that the balance of convenience is also in favour of
the first respondent only. Unless the plaintiff shifts to the newly allotted space and allows the second respondent to effect development in the
premises in which he is now in occupation by enabling the second respondent to demolish and complete the construction, there is a likelihood of
heavy loss being incurred by the second respondent and the second respondent is also likely to lose his reputation as a builder since he has to keep
his promise to the persons with whom he had entered into agreement. The balance of convenience is also in favour of the respondents which
cannot be denied.
Having thus found against the plaintiff on the first principle of a prima facie case for any temporary injunction pending the suit, the learned single
Judge has considered the question of balance of convenience and decided that eight out of fourteen members of the Association in which the
plaintiff was a member, have shifted the business to alternative accommodation provided by the first respondent to them, and unless the plaintiff
shifted to the newly allotted place and allowed the second respondent to effect development in the premises in which it is now in occupation, there
was a likelihood of heavy loss being incurred by the second respondent and the second respondent is also likely to lose his reputation as a builder,
since he has to keep his promise to the persons which whom he had entered into agreement.
The first attack upon the judgement in relation to the question of balance of convenience in favour of the appellant before us, is that instead of
taking into account the balance of convenience of the plaintiff on the one hand and the first defendant on the other hand, who alone have the
relationship of landlord and tenant (lessor and lessee) according to the plaintiff, and according to the defendants, that of the licensor and the
licensees, the court has gone beyond all norms of law by taking notice of the so called balance of convenience by dint of the alleged injury to the
second defendant, who is merely an agreement holder with the first defendant for developing the property. The second attack on the rule of
balance of convenience by the plaintiff is that it is not the injury which can be compensated in terms of money, but the seriousness of the injury
suffered by the plaintiff on the one hand and the defendants on the other, that has to be taken into consideration and something which can be
compensated in terms of money does not really interfere in the rule of balance of convenience. The third attack on the said principle applied by the
learned single judge, by the plaintiff before us is that the court has taken no notice of the undertaking of the defendants in the Civil Revision Petition
(CRP. No. 220 of 1991) at all and thus has completely ignored the obligation which has been created upon the defendants by the undertaking in a
judicial proceeding. We find, prima facie, the three contentions are worth examining by the Appellate Court,
On the issue of the prima facie case, the two main arguments on behalf of the appellant are: (i) The agreement dated 12.8.1982 has no doubt
described the relationship between the two in such a way that the plaintiff has been described as a licensee, but the terms therein when read in the
light of the well settled principles of law will disclose that the relationship between the first defendant and the plaintiff has always been that of a
landlord and tenant, that is to say, that of the lessor and the lessee. In so far as this question of the determination of the relationship is concerned, it
is urged on behalf of the plaintiff/appellant that the matter must be deemed to be settled in the earlier proceeding and the order in revision must be
read as the order in the suit, which has been finally disposed of by this Court in CRP. No. 220/91, and thus the undertaking, in itself, is an
acknowledgment of the right of the plaintiff to hold the property until alternative accommodation is provided to it by the first defendant. We are
persuaded at this stage to hold that the finding recorded by the learned judge on the principle of prima facie case needs an in depth examination by
the Appellate Court. We are satisfied thus, on the facts of this case, that the plaintiff/appellant has made out a case for ad interim injunction until the
disposal of the appeal. We accordingly admit the appeal and order that there shall be an ad interim injunction in favour of the appellant, restraining
the respondents herein, their men, agents or servants from demolishing or otherwise damaging or interfering with the structure, stability, fittings and
fixtures of the building at South Eastern and No. 767, Anna Salai, Spencers Building, Madras - 2. However, on the facts of the case, continuance
of the interim injunction may not be in the best interest of the parties and the appeal in our opinion should be listed as quickly as possible for final
hearing. The appellant is directed to make the appeal ready within two months. Put up the appeal two months hence for final hearing.