WP. 8458, 8459-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 8458 OF 2010 State Bank of Hyderabad ...Petitioner Vs. Rakesh Chander Saigal & Ors. ...Respondents AND CIVIL WRIT PETITION No. 8459 OF 2010 Rakesh Chander Saigal & Ors. ...Petitioners Vs. State Bank of Hyderabad ...Respondent *** Mr. Pradeep Sancheti i/b Bhuta & Associates & Asha Bhuta, for the Petitioner in WP 8458/1990 and for Respondent in WP. 8459/1990. Mr. P. V. Nichani i/b M/s. P. V. Nichani & Co, for the Respondent in WP. 8458/1990 and WP 8459/1990. *** CORAM: V. M. KANADE J. DATE : JULY 6, 2011 P.C. 1. Both these writ petitions can be disposed of by a common order since common order has been challenged by the petitioner in both the petitions. Heard the learned counsel appearing on behalf of the petitioner and the respondent in both petitions. WP. 8458, 8459-10 - 2 - 2. Brief facts are that Rakesh Saigal was owner of the suit premises and he had given the said premises on lease. After some time the said lease was terminated and suit was filed for eviction and possession of the premises and also the mesne profits was claimed by the said landlord/lessor. The suit was decreed, possession was not handed over by the State Bank of Hyderabad on 29-2-2008. Application was filed for mesne profits and in the said application, the trial court directed that the State Bank of Hyderabad should pay compensation of Rs. 5,75,000/- per month. Against this judgment and order, an appeal was preferred by the State Bank of Hyderabad before the Division Bench of the Small Causes Court. An order was passed by this Court on 29-10-2007 and by the said order a direction was given that possession should be given within one year from the date of said order i.e. 29-10-2007. The landlord/lessor also challenged the order passed by the trial Court, fixing the mesne profits and contended that they were entitled to claim monthly compensation at the higher rate. The entire decreetal amount was deposited by the State Bank of Hyderabad and thereafter an application was made by the lessor for withdrawal of the said amount. The lower appellate court by its order dated 25th March, 2010 permitted the lessor to withdraw an amount of Rs. 75,00,000/- and WP. 8458, 8459-10 - 3 - further directed that balance amount may be invested in a nationalised bank. Being aggrieved by the said order, both State Bank of Hyderabad as well as lessor have filed these two writ petitions. 3. Learned counsel appearing on behalf of the landlord/lessor submitted that in the lower appellate court it was contended by the bank that at the highest lessor was entitled to get mesne profits @ Rs. 100/- to 130/- per sq. ft. and that the said amount comes to about Rs. 33 lakhs. Secondly, it was submitted that before the trial court, a suggestion was made to the lessor/landlord’s witness that market rate was Rs. 150/- and 200/- and the said suggestion was denied. It was contended that since this suggestion was made by the bank, bank has accepted that the market rate was between Rs. 150 and 200 per sq. ft.. It was submitted that market value of the suit premises was more than Rs. 10 Crores and in the event bank succeeds in appeal, the entire amount could be returned to the bank with interest @ 6% per annum and an undertaking to that effect could be given by the lessor. 4. On the other hand, the learned senior counsel appearing on behalf of the bank submitted that the lessor had already received an amount of Rs. one lakh per month for eleven months. Secondly, it is submitted that though an undertaking was given to this court by the bank WP. 8458, 8459-10 - 4 - that they would would hand over the premises to the lessor on 29-10-2008, they did not do so and therefore, they filed an application for extension of time. This Court, however, by an order dated 15th October, 2008 extended the period about 5-6 months and directed that for this period, the bank should pay Rs.14 lakhs per month and the actual market value would be determined by a separate order by the valuer which was appointed by the Court Receiver. It was, therefore, submitted that the lessor had received an amount approximately Rs.50 lakhs. It is submitted that if the amount of Rs. 75 lakhs added to this figure, the lessor had received more than Rs. 1,36,00,000/-. It is submitted that, therefore, lessor may be directed to refund the said amount of Rs.75,00,000/- or in the alternative give a security for the said amount and the petition filed by him seeking withdrawal of the balance amount may be dismissed. 5. After having heard both the counsel at length, in my view, it is not necessary to interfere with the interim order which is passed by the lower appellate court. The lower appellate court while exercising its discretion under Order 41, Rule 35 of C. P. C. has imposed certain conditions and taken into consideration facts and circumstances of the case. The hearing of the appeal itself has been expedited by this Court. WP. 8458, 8459-10 - 5 - The said order is obviously without prejudice to the rights and contentions of the parties. 6. So far as amount of Rs.14 lakhs per month which is paid by the bank for the period which was extended by this Court is concerned, a separate Civil Revision Application has been filed and the said Civil Revision Application, in my view, will take care of the dispute regarding the amount payable to the bank and therefore, the said amount which has been paid by the bank to the lessor need not be taken into consideration while deciding these Writ Petitions. Since the lessor has submitted that he is willing to give an undertaking to this Court that in the event bank succeeds in the appeal, he will return the said amount of Rs.75 lakhs with interest @ 6% per annum; and secondly, during pendency of the appeal he will not dispose of the suit premises. The undertaking to be filed by the lessor within one week from today. In my view, in view of this undertaking, it is not necessary to give a direction to the lessor to refund the amount of Rs.75 lakhs which he has already received. At the same time, in my view, at this stage, it would not be appropriate to permit the lessor to withdraw the balance amount which is deposited by the bank, since in any case hearing of the appeal is expedited. Hence, no case is made out for interfering with the impugned order. Both the Civil WP. 8458, 8459-10 - 6 - Writ Petitions are, therefore, dismissed. 7. Civil Revision Application No. 541 of 2007 be placed on admission board after one week. [ V. M. KANADE J.]