1 25-cac-353-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.353 OF 2011 IN CIVIL REVISION APPLICATION NO.437 OF 2010 Homi F. Commissariat .. Applicant V/s. Life Insurance Corporation of India .. Respondent. Mr. K. J. Panicker for Applicant/ Original Respondent. Prisalla Samuel i/b. Shri R. V. Samuel, for Respondent/ Original Applicant. CORAM : G.S.GODBOLE, J. DATE : 16th AUGUST, 2011. P.C.: 1 The Applicant is original Plaintiff in T. E. & R. Suit No.539/568 of 2001 which was a suit for eviction of business premises and was decreed by the Judgment and Order dated 1st November, 2004. There is no dispute that the Respondent has vacated the suit premises on 29th December, 2004. In Misc. Notice No.75 of 2005, which was an application for an enquiry into mesne profits, the Trial Court awarded mesne profits at the rate of Rs.128/- per sq. ft. per month, amounting to Rs.5,45,000/- per month from the date of decree with interest at the rate of 6% per annum. Whereas in 2 25-cac-353-2011.sxw Appeal No.36 of 2009, filed by the Respondent-tenant, while dismissing the Appeal, the Appellate Court allowed Cross Objection No. 14 of 2009 and while maintaining the rate of mesne profits, an order was passed directing that the mesne profits shall be payable from the date of institution of the suit. The suit was filed on 10th October, 2001. 2 While admitting this Civil Revision Application, by order dated 18th November, 2010, this Court has stayed the execution of the impugned Judgment and Order, subject to conditions which are incorporated in clauses 3 to 6 of the said order, which reads thus:- “3- Considering the facts and circumstances of the case, Applicant will have to deposit mesne profit calculated @ Rs.80 per sq.ft. per month as a condition for grant of stay. 4- Hence, there will be interim relief in terms of prayer clause (b), subject to the condition of applicant depositing with the trial Court an amount calculated @Rs.80 per sq. ft. per month from the date of the institution of the suit till 29.12.2004. The amount shall be deposited with the trial Court within a period of three months from today, failing which interim relief will stand vacated without further reference to the Court. 5- As and when the amount is deposited, the same shall be invested in a fixed deposit. 6- This order will be without prejudice to the right of the Respondents to apply to this Court seeking permission to withdraw the amount.” 3 Pursuant to the liberty so granted, this Civil Application has been filed, seeking withdrawal of entire amount of Rs.1,31,56,350/- 3 25-cac-353-2011.sxw deposited by the Respondent. An affidavit in reply has been filed by the Respondent and the Application is opposed and the learned Advocate for the Respondent has also opposed the same during the course of hearing. 4 The learned Advocate for the Applicant has brought to my notice that the Respondent had appointed Shri Ashok Kelkar as a valuer, who has submitted the valuation report, indicating that the market rent of the suit premises for the purpose of mesne profits would be Rs.55.83 per sq.ft. per month. Two Courts have awarded the mesne profits at the rate of Rs.128/- per month and while Trial Court awarded the mesne profits from the date of decree of eviction, the Appellate Court awarded mesne profits from the date of suit i.e. from 10th October, 2001. 5 From the averments made in the Civil Application, nothing is indicated as to what is the financial position of the Applicant who is an individual and what is the emergent need for withdrawal of the entire amount. Applicant has recovered possession of the said premises on 29th November, 2004 and the Applicant is deriving income from them. Pursuant to the interim order, the Respondent has already deposited the amount which has been invested in a Fixed Deposit. Vide Judgment of the Appellate Court, mesne profits are awarded with interest at the rate of 6% per annum and, hence, the amount which is deposited by the Respondent is earning 4 25-cac-353-2011.sxw interest probably more than the interest awarded by the Appellate Court. 6 In these circumstances, the interests of justice will be served, if Applicant is permitted to withdraw the sum equivalent to the sum calculated at the rate of Rs.56/- per month with effect from 10th October, 2011 till 29th October, 2004, subject to the result of and final out come of this Civil Revision Application. The learned Advocate for the Respondent submits that security in the nature of Bank Guarantee must be taken from the Applicant, in case, the said withdrawal is permitted. However, I see no justification for directing the Applicant to furnish a Bank Guarantee. However, interests of justice will be served, if the Applicant is directed to furnish security other than Bank Guarantee, to the satisfaction of the Registrar (Judicial) of this Court and also file an undertaking that in the event of impugned Judgment and Decree being reversed or modified by this Court at the time of final hearing, the Applicant shall bring back the amount permitted to be withdrawn with such rate of interest as may be directed at the relevant time. In so far as balance amount is concerned, the same will continue to remain invested till the disposal of the Civil Revision Application. Hence, this Civil Application is disposed off with the above directions. (G.S.GODBOLE, J.)