SRJ wp-5974-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5974 OF 2009 KEC International Ltd., ) A Public Limited Company registered ) under the Companies Act, 1960, having ) its registered office at 1st floor, ) CEAT Mahal, 463, Dr.Annie Besant Road, ) Worli, Mumbai 400 030. ).. Petitioner V/s. 1.M/s. Kum Kum Silk Mills ) 2.M/s. Kum Kum Silk Mills (Estate) ) both are firms registered under the ) Provisions of the Indian Partnership ) Act, 1932, and are carrying on their ) business at 32/36, Chhipi Chawl, ) Ground Floor, (Shamsett Street), ) Zaveri Bazar, Mumbai 400 002 and also ) at Bharat Silk Mills Compound, ) Sunder Baug, Kurla (West), Mumbai 77. ).. Respondents. ORAL JUDGMENT:- CORAM : A.S.OKA, J. DATED : 28th August, 2009. 1] The Petitioner has invoked article 227 of the Constitution of India. The Petitioner has challenged the order dated 11th February, 2009 passed by the Appeal Bench of the Court of Small Causes at Bombay. The Respondents/Original Plaintiffs filed a suit for eviction against Petitioner. There was a decree for possession passed in the suit against Petitioner. In terms of the decree, the Petitioner has already handed over possession of the said premises to the SRJ wp-5974-09.sxw 2 Respondents. While passing decree for possession, a direction was issued by the Trial Court directing that an enquiry under order XX Rule 12 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code)be held for determination of mesne profits. Accordingly, an enquiry was held and by order dated 6 th October, 2004, Trial Court fixed mesne profits at the Rs.1,80,000/- per month. The Petitioner was ordered to comply with the said order on or before 31 st March, 2005. On 6 th January, 2005, the Respondents preferred an Appeal against the said order dated 6 th October,2004 for enhancement in the mesne profits. On 14 th March, 2005 the Advocate for the Respondents addressed a letter to the Petitioner calling upon the Petitioner to comply with the order dated 6 th October, 2004. On 31 st May, 2005, the Petitioner forwarded to the Respondents a cheque for a sum of Rs.80,38,694/- towards compliance with the order dated 6 th October, 2004. The said cheque was encashed and the Respondents Advocate issued a stamped and signed receipt for the same. 2] After Petitioner become aware of the Appeal preferred by the Respondents, the Petitioner made an application on 8 th December, 2008 before the Appeal Bench of the Court of Small Causes praying for SRJ wp-5974-09.sxw 3 dismissal of the Appeal on the ground that the Respondents having demanded and unconditionally accepted the decretal amount, they were estopped from challenging the order of the Trial Court fixing the mesne profits. By the impugned order, the Appeal Bench of the Court of Small Causes rejected the said application. 3] The learned counsel appearing for the Petitioner in support of the Petition submitted that after having preferred an Appeal, during pendency of the Appeal the Respondents demanded the decretal amount. He pointed out that the entire decretal amount was paid by the Petitioner which was unconditionally accepted by the Respondents. He submitted that after having unconditionally received the benefits under the impugned order fixing mesne profits, the Respondents cannot proceed with the Appeal in which prayer for enhancement of mesne profits is made. He submitted that after having demanded and enjoyed benefits of the order of the trial court fixing mesne profits, now Respondents cannot be proceed to prosecute Appeal preferred for challenging the said order. He submitted that right of appeal of the Respondents, if any, was waived and abandoned by the Respondents. He placed reliance on SRJ wp-5974-09.sxw 4 the decision of King s Bench in the case of Dexters Limited V/s. Hill Crest Oil Company (Bradford) Limited.He submitted that after having accepted the payment, the Respondents are estopped from prosecuting the Appeal. He also placed reliance on the decision of the Apex Court in the case of Ramesh Chandra Chandiok and another v/s. Chuni Lal Sabharwal (dead) by his legal representatives and others (AIR 1971 SC 1238 V 58 C 250) . He pressed into service a decision of full bench of Jammu & Kashmir High Court in the case of The Jammu & Kashmir Bank v/s. Lal Mohamed Bangroo (AIR 1969 J & K 25). He lastly relied upon a decision of the High Court of Patna (Ranchi Bench) in the case of Ignatia Kujur and others v/s. National Insurance Co., Ltd., and Another (2000ACJ381). He submitted that Appeal Bench of Court of Small Causes ought to have dismissed the Appeal. 4] I have carefully considered the submissions. While passing decree for eviction, the Trial Court directed that an enquiry be held for determination of mesne profits. The Respondents/Plaintiffs moved to the Trial Court for determination of mesne profits and claimed mesne profits @ Rs.7,00,000/- per month. An enquiry was held by the Trial Court and by judgment and order dated 6 th October,2004, mesne profits were SRJ wp-5974-09.sxw 5 fixed @ Rs.1,80,000/-per month for the period between 1 st August, 2000 and 8 th July,2003. Apart from mesne profits, the Petitioner was directed to pay Municipal Taxes @ Rs.1,10,000/-per year aggregating to Rs.2,75,000/-. 5] As a part of the claim for mesne profits was negatived, on 6 th January, 2005, the Respondents preferred an Appeal for enhancement. It is an admitted position that the Petitioner has not challenged the order dated 6 th October, 2004 either by preferring an Appeal or by filing Cross Objection. As the Petitioner was not aggrieved by the said order, the Respondents could have always executed the said order against the Petitioners and recovered the amount. Therefore, an Advocate s Notice was sent on 14 th March, 2005 by the Respondents calling upon the Petitioner to pay the amount in terms of order dated 6 th October, 2004. The Petitioners paid the said amount. As stated earlier, during pendency of the appeal preferred by the Respondents, the order of mesne profits dated 6 th October, 2004 could have been always executed by the Respondents by filing an Execution Application as the Petitioner had not challenged the said order and, therefore, the Petitioner was liable to pay the amount in terms of the said order. The amount was SRJ wp-5974-09.sxw 6 accepted by the Respondents during the pendency of the Appeal. The Appeal was for enhancement and, therefore, if during the pendency of the Appeal, if the Petitioner complied with the order of the trial court which was not challenged by the Petitioner,the Respondents cannot be precluded from prosecuting the Appeal for claiming enhancement. 6] In the case of Dexters Ltd before the King s Bench, the dispute between the parties was regarding contract of sale of certain goods which was referred to arbitration. The umpire made three different awards leaving to the Court to decide which one was right. The first two awards were made on the footing that the sellers were liable to the buyers for breach of contract as goods did not answer the description in the contract. The second award was for a considerably larger amount and the third award was made on the footing that there had been no breach of contract. It was held by the learned Judge of the King s Bench Division that the first award was correct. Thereafter, the buyers demanded and obtained payment of the amount of that award and gave a receipt therefor. Thereafter, the buyers preferred an Appeal and contended that the second award was the right one. It was held that after having demanded and accepted SRJ wp-5974-09.sxw 7 the payment under the first award, the appellants were precluded from contending that it was wrong. Thus, in the said case there were three distinct awards made on different footing. If one of the three award was accepted as valid, the other two awards could not have been upheld. After the King s Bench Division upheld the first award, the buyers demanded and obtained payment under that award. After accepting the amount, an appeal was preferred by the buyers contending that the first award was not legal and in fact the second award was legal. This was a case where three different awards were made which were mutually exclusive. After having accepted one of the three awards and after acting upon the said award, the buyers could not have challenged the said award by contending that the said award was wrong and the second award was right. In the present case, there is no challenge by the Petitioner to the quantum fixed by the Trial Court. The Appeal of the Respondents is for further enhancement. Therefore, there was nothing wrong if the Respondents recovered the amount payable under the impugned order of the trial court from the Petitioner in as much as in any event, the Petitioner was liable to pay the said amount having accepted the said order of the trial court. Therefore, by accepting the amount from SRJ wp-5974-09.sxw 8 the Petitioner, it cannot be said that the Respondents are estopped from prosecuting the appeal for enhancement. 7] In the case of Ramesh Chandra Chandiok and another (Supra), the appeal before the Apex Court arose out of a decree for specific performance. A suit was filed by the Appellants for specific performance of an Agreement of sale dated 18 th July, 1955. In the alternative the Appellant prayed for refund of the earnest money as well as damages. The Trial Court dismissed the prayer for specific performance. However, passed a decree for a sum of Rs.7,500/- being the refund of consideration in favour of the Appellants. An Appeal was preferred before the High Court and during pendency of the Appeal, the amount of Rs.7,500/-was deposited by the Respondents. According to the Respondents, the amount was deposited as the Appellants filed an application for execution. The question was after having filed execution application for recovery of the sum of Rs.7,500/-, whether the Appellants could have preferred an Appeal seeking a decree for specific performance. In the case before the Apex Court, the Plaintiffs had prayed for decree for specific performance and in the alternative in the event of the court declining to grant decree of SRJ wp-5974-09.sxw 9 specific performance, a prayer was made for grant of decree of refund of consideration and damages. Therefore, the question was after having executed the decree of damages whether Plaintiff could have again prayed for a decree for specific performance. 8] In the present case in hand, a part of the money claim made by the Respondents has been rejected and, therefore, an Appeal has been filed for enhancement. The action of taking the amount granted under the impugned order which was paid voluntarily by the Petitioner does not affect the right of the Respondents to prosecute the appeal in as much as the amount which was paid by the Petitioner has been accepted as the Petitioner had not challenged the order of the Trial Court. The Decision of the full Bench of Jammu & Kashmir High Court also does not support the Petitioner. In the case of Ignatia Kujur & Ors(Supra) of the Patna High Court, the Appellants were the Claimants in the Petition for compensation under the Motor Vehicles Act, 1988. The award made by the Tribunal was accepted by them by receiving the cheques and by issuing the receipt of the payment in full and final settlement of the award. Considering the factual aspects, the Patna High Court held that subsequently an appeal for enhancement could not have SRJ wp-5974-09.sxw 10 been prosecuted by the claimants. On plain reading of the judgment of the High Court of Patna, the same has been delivered in the light of the facts of the case and it does not lay down any proposition of law. 9] Thus, by accepting the amount paid by the Petitioner during the pendency of the Appeal, the Respondents are not deprived of their right to prosecute the appeal as their appeal is for seeking enhancement of mesne profits. 10] Hence, there is no merit in the Petition and the same deserves to be rejected. 11] Hence, I pass the following order:- (i) Writ Petition is rejected. (ii) This order will preclude the Petitioner from making an application for recording the satisfaction of decree. (A.S.OKA, J.)