WP. 1205-11 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 1205 OF 2011 M. M. T. C. Ltd. ... Petitioner Vs. M/s. Transfrieght Containers Ltd. ... Respondent *** Mr. A. V. Anturkar, Sr. Counsel i/b Mr. P. V. Nelson & Rajan, for the Petitioner. Ms. Ranjana Parikh, for the Respondent. *** CORAM : V. M. KANADE, J. DATE : AUGUST 10, 2011 PC: 1. Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the respondents. The petitioner is a public sector undertaking. Respondent is owner of the suit premises. The premises were given on lease to the petitioner and the said lease were terminated in the year 2000 and the suit for eviction was filed. The said suit was decreed, and an appeal against the said judgment & decree was preferred by the petitioner. However, during pendency of the appeal, possession of the suit WP. 1205-11 - 2 - property was handed over on 31-3-2002. Thereafter, the appeal was also dismissed and the order of the trial court was confirmed. 2. The application for mesne profits was filed by the respondent, claiming mesne profit from 1-7-2000 to 31-3-2002. The plaintiff and the defendant led evidence and the trial court came to the conclusion that petitioner was liable to pay mesne profits @ Rs. 161/- per sq. ft. This order was confirmed in the appeal. The learned senior counsel appearing for the petitioner submitted that both the courts below had erred in calculating the mesne profits on the basis of the comparable value of rent which was receivable in the area where the premises are situated. He submitted that for the purpose of ascertaining mesne profits it was required to be seen the value of the user of the land to the person in wrongful possession. In support of this contention, the learned counsel has relied on the judgment of the Apex Court in the case of – Fateh Chand, Appellant Vs. Balkishan Dass, Respondent AIR 1963 Supreme Court 1405]. He also submitted that both the courts below had not given any reasons while determining the said mesne profits. He invited my attention to the impugned orders passed of both the courts below. 3. On the other hand, Ms. Ranjana Parikh, learned counsel WP. 1205-11 - 3 - appearing for the respondent submitted that valuer who was examined by the respondent had given four instances and the petitioner’s witnesses had admitted that instance Nos. 3 and 4 were comparable instances. On the other hand, it is submitted that the valuer which was examined by the petitioner had given instances of properties which were situated in Fort Area and had not given any single instance in respect of the premises which were situated near the suit premises. She submitted that number of judgments were cited before the trial court and before the lower appellate court, in which it was held that comparable instances in respect of premises which were given on rent was a proper way of finding out the compensation which to be paid paid. He submitted that both the courts had accepted the lowest figure, namely Rs.161/- which was being paid as rent/ compensation in respect of premises situated in the same area. 4. After having heard both the counsel at length, in my view, no case is made out for interfering with the concurrent finding given by both the courts below. Both the courts have taken into consideration the evidence on record and had given cogent reasons for the purpose of accepting the instance No. 4 which was given by the respondent’s valuer. The ratio of the judgment on which reliance is WP. 1205-11 - 4 - placed by the petitioner, in my view, will not apply to the facts of the present case, since the Apex Court had observed that the High Court in the said case had adopted highly artificial method in arriving mesne profits and in that context has observed that normal measure of mesne profits is, therefore, value of user of land to the person in wrongful possession. Both the courts below have taken into consideration the various judgments of the Apex Court wherein the Apex Court has held that in order to find out what is the mesne profits, comparable instances have to be taken into consideration. Hence, while exercising limited jurisdiction under Art. 227 of the Constitution, it will not be possible to interfere with the impugned orders passed by both the courts below. The civil writ petition is, therefore, dismissed. 5. The learned counsel appearing for the petitioner submits that the petitioner has already paid the admitted amount, namely the amount @ Rs. 84/- per sq. ft. and has given bank guarantee for the balance amount. The learned counsel for the petitioner submits that petitioner being a government company, six months time may be granted. In my view, in the interest of justice, it would proper if six months time is given to the petitioner to pay the balance amount and an undertaking to that effect shall be filed by the petitioner within a WP. 1205-11 - 5 - period of four weeks from today. If the undertaking is not filed, respondents will be at liberty to execute the impugned order. The bank guarantee, however, which is given by the petitioner shall continue till the balance payment is made. [ V. M. KANADE, J.]