1 CAW.2839/10-WP.3632/09 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO. 2839 OF 2010 IN WRIT PETITION NO.3632 OF 2009 M/s. Mahalaxmi Tourism Development Co. Pvt. Ltd. ...Petitioner Vs. Pune Municipal Corpn. & Anr. ...Respondents Mr. Sampat Sawant, Petitioner in person Mr. R.M. Pethe for Respondents CORAM : SMT. ROSHAN DALVI, J. Reserved for Order : 11TH / 18TH JANUARY, 2011 Pronouncement of Order : 31ST JANUARY, 2011 ORDER : 1. This application is taken out by the Petitioner for condonation of delay of two days in payment of arrears. On 4th January 2010 the Petitioner was directed by an order of this Court to deposit with the first Respondent the entire amount of licence fee/rent/compensation payable under its contract with first Respondent and also the accelerated amount payable as per the resolution of the first Respondent within 4 weeks of the passing of that order in the Petition. Upon such deposit the first Respondent was to handover possession of the premises let to the Petitioner by it and then follow the procedure under 2 CAW.2839/10-WP.3632/09 Section 81(b) of the Bombay Provincial Municipal Corporation Act, 1949 (the Act) to recover possession from the Petitioner. If the Petitioner did not deposit the entire arrears, the Petition was to stand dismissed. 2. The Petitioner claims to have deposited albeit with two days delay. If the entire amount is deposited, the condonation of delay would be granted by any Court. Though the Petitioner contends that he has deposited all the amounts payable, the Respondent contends that a huge amount of Rs.56.43 lakhs still remains pending and hence delay cannot be condoned and the Petition stands dismissed. 3. Since there is a dispute between the parties it would have to be prima facie seen whether such a large amount or any such amount is due and payable, but was not deposited or whether the amount deposited by the Petitioner clearly constitutes even an approximate amount depositable. 4. It may be mentioned that this Court is not required to make arithmetical calculations to ascertain any precise amount payable and remaining unpaid. It will only have to be seen approximately whether the case of the Petitioner or first Respondent of payment and non-payment respectively is correct. 3 CAW.2839/10-WP.3632/09 5. The Petitioner was to be in possession of its premises under a written agreement which expired by a flux of time in 2003. The Petitioner was holding over the premises until possession was taken from it in about 2009. Consequently, accelerated amounts for holding over would be required to be paid by the Petitioner to the first Respondent as agreed in the contract between the parties and as per the demands of the first Respondent made from time to time when the Petitioner failed to vacate. 6. It must be remembered that the main cause for taking over possession of the premises from the Petitioner is the non- payment of the licence fees as required. The main dispute between the parties arose from 1st February 2000 when the rent was not paid as agreed. Rs.39.78 lakhs was stated to be payable for a period between 1st February 2000 to 31st January 2003. In addition to that Rs.6.33 lakhs was payable for the first year, Rs.6.63 lakhs for the second year and Rs.6.93 lakhs for the third year. The Petitioner is stated to have paid only Rs. 5.93 lakhs out of the above payable amounts. Thereafter Rs. 33.85 lakhs towards lease rent and Rs.12.96 lakhs towards licence fee was paid. Consequently, Rs.12 lakhs still remained payable. 7. Under the terms of the agreement arbitration was resorted to. 4 CAW.2839/10-WP.3632/09 The Municipal Commissioner was to be the Arbitrator. Meetings were held for the purpose of determination and calculation of the unpaid amount. The Petitioner was represented by its representative. The Petitioner contended that it had incurred certain expenditure. It was asked to give details of the expenditure. There was huge difference between the expenditure accepted by the first Respondent and claimed by the Petitioner. The parties agreed for reconciliation of accounts. Upon reconciliation the Respondents accepted an expenditure of Rs.20.38 lakhs, whereas the Petitioner claimed expenditure of Rs.54.38 lakhs to be deducted from the amounts payable. The Petitioner was then directed to pay Rs.38.29 lakhs excluding the disputed amount of Rs.54.38 lakhs. The Petitioner failed to pay. Show-cause notice was issued for action to be initiated under Section 81(2)(B) and 81(2)(C) of the Act. 8. The Petitioner replied to the notice and deposited Rs.12 lakhs. Giving credit for that amount the Respondents demanded further Rs.21.50 lakhs. The Respondents claim that this amount was directed to be paid keeping aside the disputed amount of Rs.34.59 lakhs upon reconciliation of the expenditure amount. The Petitioner denied that that amount was payable, but without explanation. The first Respondent has further directed the Petitioner to pay property taxes of Rs. 23.63 lakhs. 5 CAW.2839/10-WP.3632/09 9. It is contended by the Petitioner that the amounts payable under the agreement between the parties was specified for each year and that amount was being paid. This does not take account of the accelerated payments required upon holding over the premises without making payment for a number of years. 10.As against the aforesaid calculations the Petitioner submits that from 1st January 2000 specified rents were payable for each year. He claims that Rs.1.04 Crores accordingly came to be payable and instead the Petitioner has paid and the first Respondent has received Rs.1.17 Crores. The Petitioner, therefore, claims over payments made. 11.These calculations show the rent of Rs.1.05, Rs.1.10 and Rs. 1.15 payable in the first three years. The agreement came to an end at the end of third year which was on 31st December 2002. 12.From 1st January 2003 that the Petitioner held over, the Petitioner claims that the rent payable is Rs.1.15 for each of the 5 years until 2007 when the first Respondent took possession of the licenced premises from the Petitioner. That is a fundamental error. When the agreement itself provides accelerated rent for the period of the agreement an accelerated 6 CAW.2839/10-WP.3632/09 amounts thereafter the rents payable during the period held over cannot be the last rent throughout. Upon this premise it is seen that the Petitioner’s calculations is incorrect without looking into certain arithmetical errors, if any. The vast differences in the amounts stated to be payable by the Petitioner and the first Respondent is seen to be upon this seminal aspect. 13.The Petitioner cannot be allowed to deposit the amounts on such premise. The deposit made on such premise being an error, the contention of two days delay for such deposit cannot be countenanced. 14.In fact until today the Petitioner has not deposited the amount depositable. That deposited amount was the amount payable under the contract and the accelerated amount payable as per the resolution of the first Respondent, which the Petitioner accepted to pay when the order dated 4th January 2010 was passed and claims to have paid. The Petitioner has not paid the accelerated amount for the rate at which it was payable according to him. 15.The first Respondent has calculated amounts @ Rs.1.20, 1.25, 1.30, 135 and 1.40 lakhs for the years 2003 to 2007 until possession was taken. Counsel on behalf of the Respondents claim that in fact that is lesser than the rate of accelerated 7 CAW.2839/10-WP.3632/09 amounts under the contract and is only claimed at Rs.5000/- p.m for the subsequent years when the Petitioner held over. 16.Consequently the deposit is not made by the Petitioner as per the order dated 4th January 2010 and hence the delay in depositing cannot be condoned. 17.Civil application must, therefore, be rejected. However since the Respondents’ action is only upon non-deposit of amounts under the contract between the parties, in order to give the Petitioner one last opportunity to pay up the amount payable, but not deposited, the Petitioner is given two weeks time to deposit the balance amount claimed by the Respondents in this Court. If the amount is deposited, the Petitioner shall be once again heard on the exact amount payable having regard to the arithmetical errors, if any, in ascertaining the amounts of expenditure and the reconciliation amount as per his case made out in his affidavits filed in this Application. In that case further proceedings directed in the order dated 4th January 2010 may be initiated and concluded in accordance with law. If that amount is not deposited the Petition shall stand dismissed within two weeks from today. Status-quo shall continue for 2 weeks. (SMT. ROSHAN DALVI, J.)