Bombay High Court refuses relief to Copper Chimney restaurant against notice of eviction from Kala Ghoda premises

The Bombay High Court on Friday dismissed a plea filed by the owner of Copper Chimney restaurant against a notice of eviction sent by the owner of the building of the restaurant's Khala Ghoda outlet..Single judge Justice GS Kulkarni upheld an order passed in this regard by a City Civil Court of Mumbai which refused to restrain the proprietors of the premise - Trade Wings Ltd and Narayani Hospitality and Academic Institution - from acting on the eviction notice sent to Copper Chimney.The Court allowed Copper Chimney to continue its occupation of the premises till February 20, 2023 only if it deposits with the proprietor, dues of ₹12 lakh per month owed since October 2022. .The dispute before the High Court was whether the agreement between Copper Chimney and Narayani would stand extended because Copper Chimney invoked the force majeure clause citing COVID-19.Narayani had permitted Coper Chimney to use and occupy the premise for running and operating the restaurant for a period of 5 years starting from October 2017. The license period expired on September 30, 2022.During the five years of the agreement, the nation was hit by the COVID-19 pandemic from March 2020. Copper Chimney, therefore, wrote to Narayani and invoked the force majeure clause seeking ‘suspended animation’ of the agreement till the time the event of force majeure continues. It also sought exemption from performing its obligations and payment of conducting fees and other monetary obligations during this period. .Narayani responded stating that they are entitled to terminate the agreement on May 23, 2020, if Deluxe continued to remain unable to perform its obligations under the agreement. Narayani also requested Copper Chimney to clear all dues till March 23, 2022, the date when it invoked the force majeure clause. Narayani further claimed that it kept raising requests for payment of rentals and other charges. On May 31, 2022, Narayani sent a notice to Copper Chimney stating that by efflux of time, the agreement was to expire on September 30, 2022. It also asked Copper Chimney to make alternate arrangements so that suit premises are vacated by September 30, 2022..Against this backdrop, Copper Chimney approached the City Civil Court challenging such notice. The City Civil Court refused to grant any interim relief and Copper Chimney then approached the High Court in appeal. The High Court passed an order on October 1, 2022, directing the parties to maintain status quo.On Friday, the Court concluded that balance of convenience lay in favour of the proprietor considering the substantial price and the prejudice that would be caused to them if Copper Chimney is allowed to retain the premises.After hearing both sides at length, the Court concluded that by virtue of what has been agreed between the parties under the force majeure clause, it will be unacceptable that the term of contract would stand extended by such clause. “It is thus clear that the agreement having being expired by efflux of time, there was no legal right whatsoever for Deluxe (Copper Chimney) to seek a relief of temporary injunction, so as to continue to remain in possession and occupation of the premises. The rights being sought by Deluxe are contractual rights which itself stood extinguished after the period of the contract had come to an end. Thus, to presume that there was any legal right in the appellant by invoking the force majeure is certainly an untenable proposition,” the Court held.Thus, the view taken by the City Civil judge cannot be faulted, the Court said in its 35-page order..Senior Advocate Ravi Kadam with Advocates Prateek Sakseria, Soham Khinkhabwala, Priyam Amin and Kaushal Parsekar briefed by Desai Desai Carrimjee and Mulla appeared for Deluxe Caterers.Senior Advocate SU Kamdar with Advocates Ajay Panicker briefed by Ajay Law Associates appeared for Narayani Associates.Advocates Aseem Naphade and Arvind Tiwari briefed by Advocate Atal Dubey appeared for Trade Wings and Narayani Hospitality. [Read order]