:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.5105 OF 2007 IN FIRST APPEAL NO.44 OF 2004 Mrs.Shakuntala Raju Shetty through Shri. Raju R.Shetty. ..Applicant. Vs. Mohammed Issac Khan and ors. ..Respondents. Mr.G.S. Godbole i/by G.S. Keluskar for the Applicant. Mr.R.A.Thorat i/by V.R. Gupta for the Respondents. CORAM : R.S. MOHITE, J. DATE : 29th September,2008. P.C. P.C. P.C. 1. This is an application for directions to the respondent No.1 for payment of compensation. The applicant is the owner of the suit property. The decree has been passed on 15.10.2003. The present respondent No.1 was held to be a trespasser upon a piece of land admeasuring 750sq.ft. situated at Mahim. A shed has been constructed on the said land by the respondent No.1. After matter was admitted, the present applicant preferred an application in the year 2005 for compensation at market rate. That application was not decided on the footing that appeal was likely to be heard. When the appeal was not heard, the second application was filed by the applicant on 21.8.2007. Pending application, the applicant has produced on record valuer’s report pursuant to the order passed by this court permitting the parties to produce on record :2: the valuation report of the Govt. approved valuer. The applicant has filed valuer’s report of M/s. H.M. Panchal & Associates. However, the respondent No.1 has not filed any report of any valuer. It appears that in view of the further order of this court, valuation report from the panel of Court Receiver was called and by further valuation report dated 29.5.2008, valuer appointed by the Court Receiver has valued the market rent of the premises at Rs.33350/- per month. 2. The applicant has placed reliance on the Judgment of the Apex Court in the case of Atmaram Properties Pvt. Ltd. Vs. Federal Motors Pvt. Ltd. reported in (2005) 1 S.C.C. 705. In the aforesaid judgment, the Apex Court held that measure of damages for occupation of premises had to be calculated without taking into account the rent control legislation. That after determination of the tenancy, possession of the tenant was akin to that of trespasser and from the date of the termination of the tenancy, the tenant was liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. The record in the present case indicates that there was no prayer for grant of mesne profits . However, the appeal was admitted on 21.3.2003 and absolute stay was granted. Though the first application seeking compensation was :3: made in the year 2005 that was not decided as the court felt that the appeal itself would be decided finally. The present application has been made on 21.8.2007 but there is no prayer seeking arrears of compensation. In the circumstances, in my view, ends of justice would met if the compensation is granted with effect from the date of the application i.e. from 21.8.2007. As regards the rate of the compensation, it is seen that the valuer’s report is dated 29.5.2008. The present application was made on 21.8.2007. To round off, I intend to allow the compensation at the rate arrived at by the Court Receiver’s valuer from 1.9.2007. In my view, it will be proper to award compensation at the rate of Rs.25,000/-p.m. from 1.9.2007 till 30.9.2008 i.e. for a period of 13 months. From 1.10.2008 till the disposal of the appeal, the respondent No.1 will be liable to pay compensation at the rate of Rs.33,350/- p.m. The compensation payable from 1.10.2008 onwards will be paid on or before 10th day of each calender month in which it is due. It is directed that the arrears will be deposited in this court within a period of 10-weeks from today. If there is any default in payment of these arrears which amount comes to Rs.3,25,000/-, the stay will stands vacated without any further order of this court. As regards the monthly payment, if there are any two consecutive defaults in payment of monthly compensation, in that event the stay will also stand vacated without any further order of :4: this court. The amount of Rs.3,25,000/- to be deposited in a fixed deposit of a nationalised bank, initially for a period of one year and thereafter to be renewed from time to time. Monthly compensation from October, 2008 also be invested in the aforesaid terms. 3. As a matter of special concession and by way of exception to the directions aforesaid, deposit for the month of October,2008 is allowed to be deposited on 20.10.2008. Application is disposed off in the aforesaid terms. (R. S. MOHITE, J.)