1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4287 OF 1996 M/s.K.H.Sutar Associates ...Petitioners Versus State of Maharashtra & Ors. ...Respondents ...... Mr.Tanaji Mhatugade i/b Mr.A.V.Anturkar for Petitioners. Mr.S.R.Nargolkar, G.P. for Respondents 1 and 2. Mr.S.J.Rairkar for Respondent No.3. ...... CORAM:- A.M.KHANWILKAR AND R.M.SAVANT, JJ. DATED:- APRIL 22, 2010. P.C. 1. This matter was heard on 23rd March 2010 when the Advocate on record for the Petitioners appeared before us. In view of the deliberations which took place in Court, the Advocate on record asked for time to examine the position. At his request, hearing was deferred. The matter once again appeared before us on 25th March 2010. However, on this occasion, Junior Advocate instructed by the Advocate on record appeared before us and informed the Court that the proposal of Respondent No.3 was not acceptable to the Petitioners. Since we had fully heard the matter on the earlier occasion, keeping in mind the submission made before us by the 2 Advocate on record, we proceeded to pass order on 25th March 2010 dealing with the controversy on hand. In the said order, we have noted that we could have disposed of the Petition on the basis of the finding recorded by us in relation to the points which were argued by the Counsel. However, hearing was deferred only to pass formal order on the Petition subject to compliance to be made by Respondent No.2. Accordingly, the matter was listed before us on 21st April 2010, on which date, however, the Junior Advocate instructed by the Advocate on record for the Petitioners prayed for adjournment for the reasons recorded in the said order. 2. Today, however, an affidavit has been tendered across the Bar by the Junior Advocate instructed by the Advocate on record for the Petitioners, although the same has been sworn on 4th of April 2010. No explanation is forthcoming as to why this affidavit was not tendered earlier when the matter was listed on April 21, 2010. On that day, adjournment was sought for reasons recorded in the said order. This only shows that the attempt of the Petitioners is to hoodwink the Court and keep the matter dragging further for no good reason as the principal argument of the Petitioners were already 3 considered by us as noted in our order dated 25th March 2010. In the affidavit which has been tendered across the Bar today, for the first time, it is stated that our findings noted in Para-5 regarding the area of the premises in question is manifestly wrong. This stand is, to say the least, preposterous. We have recorded that finding on the basis of the possession receipt dated 6th May 1994 at page 182 of the paper book which has been duly signed by the Petitioners. It mentions that the flat in question being tenement No.15 on the third floor, admeasures 420.00 + 109 sq.ft area. In other words, the aggregate area of the flat is 529 sq.ft. Reliance was placed on some Certificate issued by the Architect privately engaged by the Petitioners. That can be of no consequence considering the admission of the area of the flat mentioned in the said possession receipt as 529 sq.ft. It is for that reason, we had observed that it is only vague statement made by the Petitioners regarding the area of the flat being 550 sq.ft., without substantiating the same. 3. The next grievance of the Petitioners is that we have incorrectly mentioned in our order that the Respondent No.3 had 4 offered amount of Rs.1,71,925/- much before August 1999 and the same was refused by the Petitioners. The fact so recorded by us is founded on the order passed on 16th February 1998 in Civil Application No.7170 of 1996 filed in the present Writ Petition. In the said order, it is clearly mentioned that the Respondent No.3 was obliged to pay the amount as would be fixed by the Respondent No.2 within three months from the decision of the Respondent No.2. It is also recorded in the said order that the Respondent No.3 has already deposited the money with the Respondent No.2 at the rate of 325/- per square feet and the Respondent No.2 was directed to pay the same to the Applicants/Petitioners without prejudice. 4. It is noticed from the averments in Para-11 of the affidavit of Mr.Ashok Mundhe, Deputy Collector and Competent Authority dated 25th November 2002, which was filed to oppose the Contempt Petition No.423 of 2002 filed by the Petitioners, that the amount deposited by the Respondent No.3 was offered to the Petitioners who refused to accept the same. It was forwarded along with letter dated 5.7.1996. In the affidavit filed before us today the Proprietor of the 5 Petitioners assert that at the relevant time, he had gone abroad. That does not mean that the amount as offered to the Petitioners was not refused. For, the above said affidavit of Mr.Ashok Mundhe further records that the amount was offered by way of Demand Draft to the representative of the Petitioners who returned the said packet as is obvious from the postal endorsement thereon. 5. The fact remains that the Respondent No.3 had paid the requisite amount much before July 1996 and in that context we have observed in our order that the amount was offered to the Petitioners which was refused by the Petitioners and in any case the Respondent No.3 cannot be made liable to pay interest on the amount already paid by her and more so in spite of refusal to accept the same by the Petitioners. 6. The affidavit tendered on behalf of the Petitioners today further asserts that the Petitioners are entitled to interest with effect from August 1996, the date on which possession of the flat was taken over by the Respondent No.3. The fact that the possession was taken 6 over by the Respondent No.3 on 14th August 1996 cannot be the basis to fasten liability of interest on the Respondent No.3, who was put in possession only in August 1999. It is in this context we have reckoned the liability of Respondent No.3 to pay interest from August 1999. We have also taken notice of the fact that the possession could not be handed over to the Respondent No.3 because of the recalcitrant attitude of the Petitioners. 7. Considering the above noted untenable pleas of the Petitioners, we are more than convinced that the attempt of the Petitioners is only to protract the proceedings so as to pressurise the Respondent No.3 to pay more compensation to which they are not entitled to either in law or in fact. 8. It is not in dispute that the Respondent No.3 has already acted upon our order dated 25th March 2010 and deposited the remaining amount payable by Respondent No.3 including interest component as determined in the said order. 7 9. Our attention was invited by the Counsel for the Respondent No.3 to Para-6 of our order at page 6 which mentions the principal amount of Rs.2,14,245/-. It is stated that this amount should be read as Rs.2,45,423/-, which is the aggregated price of the flat and of the amenities charges. The flat cost is Rs.2,14,245/- and the amenities charges is Rs.31,178/-. Aggregate thereof would work out to Rs.2,45,423/-. Accordingly, the Respondent No.3 would be liable to pay interest on the amount of Rs.73,498/- after deducting the sum of Rs.1,71,925/- already paid from the aggregate amount to be paid by Respondent No.3 being Rs.2,45,423/-. On that basis the interest amount has been computed as Rs.46,301/-, at the rate of 18% per annum for the relevant period. We are in agreement with this submission made by the Respondent No.3. Therefore, the discrepancy noticed in Para-6 of the order will have to be understood on the above basis. 10. Considering the arguments now canvassed before us by the Petitioners, we have no hesitation in taking a view that the Petitioners have not approached the Court with clean hands and are 8 attempting to protract the proceedings for the reasons best known to them. Since the Respondent No.3 has already complied with the directions contained in our order dated 25th March 2010, we dispose of this Writ Petition on the basis of the reasons recorded by us in our order dated 25th March 2010 and also the present order. We are also disposing of the praecipe dated 21st April 2010 taken out by the Respondent No.3 for speaking to the Minutes of our Order dated 25th March 2010 on the above terms. 11. While parting, we express our displeasure about the manner in which the matter has been proceeded on behalf of the Petitioners before this Court. While disposing of this Petition, we are inclined to impose exemplary cost to be paid by the Petitioners for taking inconsistent stand at different point of time. The same is quantified as Rs.10,000/-. The amount shall be paid to the High Court Legal Service Committee within two weeks from today, failing which, the Collector, Pune shall recover the same from the Petitioners as arrears of land revenue to be made over to the High Court Legal Service Committee within three months from today. 9 12. At this stage, Counsel for the Petitioners submits that the Petitioners are accepting the amount offered by the Respondent No.3 under protest. It is for the Petitioners to consider whether to accept the said amount or not. However, we have already rejected the stand of the Petitioners on merits in our earlier order as well as in the present order. 13. Copy of this order be forwarded to the Collector, Pune for information and necessary action. (R.M.SAVANT, J.) (A. M. KHANWILKAR, J.)