SRJ wp-4351-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4351 OF 2009 Pradip J. Khanna & Anr., ..Petitioners. Vs. Stallion Logistics & Beverages Pvt., Ltd., ..Respondents. Mr.Vineet Naik i/b. Deepa Ahuja, for Petitioners Mr. M.P.Vashi i/b. M/s M.P.Vashi & Associates, for Respondents. CORAM : A.S.OKA, J.. DATE : 8th October, 2009. JUDGMENT:- 1] In terms of order dated 1st September, 2009, the Petition is taken up for final disposal at admission stage. The Petitioners are the Defendants and the Respondents are the Plaintiffs. The case of the Petitioners is that they had given suit premises consisting of ground floor premises admeasuring about 10,000 sq. ft. (carpet area) to the Respondents for running factory-cum-office on leave and licence basis. It is alleged that the period of licence expired on 30th September, 2006. The licence fee was fixed at Rs.2,00,000/-per month. SRJ wp-4351-09.sxw 2 2] In February, 2007, Respondents filed a suit for declaration in the Court of Small Causes at Mumbai claiming declaration of tenancy in respect of the suit premises. An application for temporary injunction was made by the Respondents. The said application was rejected. An appeal was preferred by the Respondents. The Appeal was decided by the order dated 29th January, 2008. The Appellate Court granted temporary injunction in favour of the Respondents subject to Respondents paying arrears of compensation @ Rs. 2,00,000/- per month till January, 2008 on or before 10th March, 2008 as well as payment of all dues towards consumption of electricity and water charges required for the business in the suit premises. Injunction was granted subject to further condition of the Respondents depositing in the Court a sum of Rs. 2,00,000/-per month till the disposal of the suit. The Respondents were also directed to continue to pay dues towards electricity and water charges regularly. The said order was not challenged by the Respondents. 3] The suit was decreed. The Petitioners preferred an appeal against the Decree which is still pending. In the meanwhile the Respondents made an application for fixation of standard rent which is also pending. An interim order was passed in the SRJ wp-4351-09.sxw 3 Appeal preferred by the Petitioners on 18th August, 2008 by which the proceedings of the standard rent application were stayed and the Respondents were directed to deposit a sum of Rs.2,00,000/-per month from 1st April, 2008 till the disposal of the Appeal. The said order was challenged by filing a Writ Petition in this Court. The Writ Petition was disposed of on 7th January, 2009, by allowing Petitioners herein to withdraw the application for interim relief in appeal with a liberty to file a fresh application. Accordingly, a fresh application was filed by the Petitioner which has been disposed of by the impugned order dated 7th May, 2009. The operative part of the impugned order reads thus:- O R D E R An interim notice Exh. 28 is partly allowed as under:- The execution and operation of the judgment and decree dated 02.05.2008 passed in R.A.D.Suit No. 305 of 2007 to the extent declaring respondent as tenant is hereby stayed till the disposal of an appeal. Rest of the prayer stands rejected. Cost in cause. 4] The learned counsel appearing for the Petitioners submitted that the Appellate Court ought to have directed the Respondents to keep on depositing SRJ wp-4351-09.sxw 4 the amount in terms of interim order dated 29th January, 2008 which was operating till the disposal of the suit. He submitted that the interim order dated 29th January, 2008 was not challenged by the Respondents. He submitted that if the Respondents were continue to occupy the suit premises, the directions incorporated in the said interim order ought to have been continued till the disposal of the appeal. He submitted that the result of the impugned order is that the Respondents will continue to occupy the valuable property without payment of compensation. He submitted that the decree of declaration of tenancy in favour of the Respondents has been stayed and, therefore, the Respondents will have to pay compensation at the rate of Rs.2,00,000/- per month. He submitted that the standard rent application filed by the Respondents cannot proceed in view of stay granted to the declaration of tenancy. The learned counsel for the Respondents submitted that the proceeding of the standard Rent Application is not stayed and therefore, appropriate directions will be issued in the said application for deposit of the amount. He pointed out that a credit for a sum of Rs.12,00,000/- has not been given to the Respondents. He submitted that the amount of Rs.2,00,000/-is SRJ wp-4351-09.sxw 5 inclusive of hire charges of machinery. He submitted that the machinery has not been used by the Respondents as the same has been dismantled. He pointed out that the electricity supply was disconnected. It is contended that the factory was closed from March, 2007 to May, 2007. He urged that various amounts have been paid by the Respondents towards electricity charges. He submitted that no interference was called for. 4] The learned counsel appearing for the Petitioners invited my attention to the stand taken by the Respondents during the course of hearing of the application for interim relief before the Appellate Court that the Respondents were willing to pay a lesser amount then Rs.2,00,000/- per month. 5] I have carefully considered the submissions. The Decree of declaration of tenancy passed in favour of the Respondents has been stayed. The said order has not been challenged by the Respondents. Therefore, the submission made that the appropriate order can be passed in application for fixation of standard rent cannot be accepted. In view of stay of operation of the decree of declaration of tenancy, no effective order can be passed in the application for fixation of Standard Rent. SRJ wp-4351-09.sxw 6 6] The Respondents continue to occupy the premises in dispute and, therefore, it is obvious that till the disposal of the appeal, the Respondents will have to pay a reasonable amount by way of compensation. The prayer made by the Petitioners for a direction against Respondents to deposit the compensation amount has not been rejected on merits. In fact, Appellate Court in the impugned order has observed thus:- As regards to the compensation, Learned Counsel of the appellant submitted that an appeal is continuation of suit, therefore, interim orders passed during the pendency of the suit are still in force and respondent is under obligation to obey the same. If it is so then, we find that it is not necessary to again direct the respondent to pay compensation to the appellant as prayed for. 7] Thus it appears that the order of deposit was not passed as a submission was made by the Petitioners that the interim order dated 29th January, 2008 passed during the pendency of the suit will continue to operate during the pendency of the appeal. It must be noted here that contentions raised by the Respondents for opposing the prayer made by the Petitioners have been noted in paragraph 8 of the impugned judgment and SRJ wp-4351-09.sxw 7 order. The learned Judges of the Appellate Court have summarised the said submissions as under:- The appellant has committed the breach of terms of tenancy, therefore, the appellants are not entitled for compensation or rent. Moreover, out of Rs.2 lakhs, Rs. 1,25,000/- only was by way of rent, while Rs.75,000/- was by way of compensation for the machineries. The machineries are not being used by the respondents and the appellants themselves have dismantled it and stored it in the store room. In any case the higher charges for the machineries cannot be included in the rent. Furthermore, out of 10000 sq.ft. 3000sq.ft. area has been surrendered due to force and coercion on the part of the appellants. Therefore, one third amount will have to be reduced. The respondents have paid Rs.12,00,000/- by way of deposit, free of interest which is lying with the appellants.Since the respondents are declared as tenants, protected under the provisions of Rent Act, the appellants are not entitled to keep the amount by way of deposit. The appellants want to recover the amount of alleged arrears without paying the Court fees. After filing this appeal, appellants have filed a suit under Section 41 of the Presidency Small Causes Court Act as LE & C Suit. Thus, the stand of the Respondents seems to be that liability, if any, on their part is to pay a lesser amount then Rs.2,00,000/- per month for the reasons which are disclosed above. As stated earlier, the prayer of the Petitioners for a direction against the SRJ wp-4351-09.sxw 8 Respondents to deposit compensation amount has not been rejected on merits. The said prayer has not been considered as a submission was made by the Petitioners themselves that the interim order passed during the pendency of the suit will still continue to operate. As a matter of fact, the said order is not operating. The Respondents have come out with the case that they are liable to pay lesser amount of compensation on various grounds. It must be noted that the Respondents have succeed in the suit. Though the Respondents will have to deposit a reasonable amount by way of compensation, the amount which can be directed to be deposited will have to be determined after hearing the parties as the Respondents are claiming certain adjustments/deductions from the amount payable at the rate of Rs.2,00,000/- per month. As Appellate Court has not considered this aspect, for the reasons which are set out earlier, the said court will have to consider the prayer clause (c) of the interim application at Ex. 28 and will have to pass appropriate order after hearing the parties. 8] Hence, Petition is disposed of by following order:- SRJ wp-4351-09.sxw 9 (i) The Appellate Court is directed to hear the parties on prayer clause (c) of interim application at Exhibit 28 and thereafter to pass an appropriate order in the light of observations made in this order; (ii) It is made clear that the order dated 17th March, 2009 granting stay will continue to operate till the disposal of the appeal; (iii) The Order of remand of this court is confined to consideration of prayer clause (c) of the application at Exhibit 28; (iv) The Appellate Court will pass order after hearing the parties as expeditiously as possible and in any event before the end of this year. 8] Writ Petition is disposed of on the above terms. (A.S.OKA, J. )