1 (WP2401.96) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2401 OF 1996 Vinay A. Rathi ..... Petitioner. V/s Ram Gopal Gupta (deceased) through his legal heirs, successors and assignees 1a. Neel Kumar Gupta & Ors ..... Respondents. Mr. Vinay A. Rathi, Petitioner present in person. Mr. M.L. Patil for Respondent Nos. 1(a) to 1(d). CORAM: V. M. KANADE, J. DATE : 13th June, 2011 P.C.:- 1. Heard the Petitioner who is appearing in person and the learned Counsel for Respondents. 2. Petitioner is a practising advocate. A suit was filed by the Respondents for eviction on the ground of default in payment of rent. In the said suit, consent terms were filed and the decree was passed in terms of the consent terms by order dated 23/5/1991. Initially, by the said consent terms, decree was passed against the Petitioner and also his mother, wife and children. The said consent terms were 2 (WP2401.96) challenged by them and it was alleged that the Petitioner herein did not have any authority to sign the consent terms on their behalf. Hence, the consent terms, so far as mother, wife and children are concerned, were set aside. 3. The Petitioner challenged the said consent terms by filing an appeal. Appeal was dismissed. Writ Petition challenging the said order was also dismissed. SLP was preferred in the Supreme Court. However, the SLP was also dismissed. 4. Thereafter, decree holder filed an application for execution of the decree. In the consent terms, Petitioner had agreed to pay rent @ Rs 3,100/- from the date of the decree. Executing Court came to the conclusion that the amount of Rs 75,000/- was payable by the judgment debtor. This order, again, was challenged by the Petitioner in appeal. Before the lower Appellate Court, it was contended that during pendency of the suit, the Court had held that the rent was Rs 1,400/- and, therefore, the calculation which was made by the Executing Court was incorrect. The lower Appellate Court, after taking into consideration the said submission, by a reasoned order, dismissed the appeal. Petitioner then filed Review Petition. This Review Petition was also dismissed. Thereafter, present Petition has been filed challenging the order passed by the Executing Court and which was confirmed in appeal by the lower Appellate 3 (WP2401.96) Court. 5. During pendency of this Petition, Petitioner was directed to deposit Rs 37,000/- and the Petitioner agreed to deposit Rs 37,000/- in this Court and to give a Bank Guarantee for the balance amount. It is contended that the Petitioner, apart from depositing Rs 37,000/- in this Court, has further paid an amount of Rs 10,000/- in cash by virtue of the order of the Court and for the balance amount the Bank Guarantee was given. 6. Petitioner contended that the calculation made by the Executing Court is not correct. Secondly, he submitted that the Trial Court had held that rent was Rs 1,400/-. He invited my attention to the order passed by the Trial Court. Thirdly, he submitted that the suit premises were demolished for some time and, therefore, for the said period, Petitioner was not liable to pay the rent and the said amount comes to Rs 9300/-. Since the premises were reconstructed, the Petitioner was put back in possession in September, 1996. It is submitted that the learned Single Judge of this Court in Notice of Motion No.1545 of 1996 in Suit No.1434 of 1996 made an observation to this effect. It is submitted that, therefore, the impugned order is liable to be set aside. 7. Mr. Patil, the learned Counsel appearing on behalf of the Respondents submitted that Rs 9,300/- may be deducted 4 (WP2401.96) from the amount which is due and payable by the Petitioner, since, during that period, the premises were not in existence. He also admitted that Rs 10,000/- in cash was received by the Respondents. He submitted that, therefore, balance amount of Rs 55700/- may be directed to be paid by the Petitioner to the Respondents. 8. After having heard both sides, in my view, no case is made out for interfering with the impugned order passed by the Executing Court and confirmed by the lower Appellate Court. However, in view of the subsequent order passed by this Court in Notice of Motion No.1545 of 1996 and since, admittedly, the office premises were not in existence for a period of three months, the said amount of Rs 9,300/- would be deducted from Rs 75,000/- which is payable to the decree holder. The Petitioner and Respondents filed consent terms in the Trial Court. The said decree has been confirmed upto the Apex Court. It is now, therefore, not possible to come to the conclusion that the rent was not Rs 3,100/- but was Rs 1,400/- as claimed by the Petitioner. Therefore, this is not a fit case for interfering with the impugned order while exercising jurisdiction under Article 227 of the Constitution of India. However, since the Respondents have conceded that the Petitioner may not pay Rs 9,300/-, the said amount would have to be deducted from the total amount of Rs 75,000/-. 5 (WP2401.96) 9. Respondents are permitted to withdraw the amount which is deposited by the Petitioner and encash the Bank Guarantee, along with interest which was accrued on the said amount. The amount of Rs 10,000/- has already been received by the Respondents. It is clarified that excess amount, if any, would be refunded to the Petitioner. Petitioner who is appearing in person gives undertaking to this Court that the Bank Guarantee is still in operation. 10. Writ Petition is allowed partly in the aforesaid terms and disposed of. (V.M. KANADE, J.) 6 (WP2401.96)