1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3716 2008 WITH Notice of Motion No.3752 of 2008 IN Suit No.214 of 2008 M/s.Navrang Exports. .. .. Plaintiff v/s. M/s.Happy Enterprises .. .. Defendant Mr.Gaurav Joshi with Mr.Sunil Gangan i/by RMG Law Associates for Plaintiff. Mr.J.A. Udaipuri with Ms.Seema Chettri for Defendant. ------ CORAM : SMT.ROSHAN DALVI, J. Dated : 23rd January 2009 P.C. : 1.The Plaintiff has entered into a Conducting Agreement with the Defendant in respect of the premises mentioned therein. The area of the premises is not mentioned. No plan of the premises is annexed to the Agreement. It is the case of the Plaintiff that the area was 3000 sq. ft. The suit premises is a factory premises. It has an excess from the lobby. It is, therefore, the premises duly constructed. 2.The Defendant has to pay compensation of Rs.85,000/- per 2 month under the Agreement. There have been various disputes between the parties. 3.The Plaintiff has taken out a Notice of Motion in October 2008 for appointment of Court Receiver and for payment of compensation at the market rate by the Defendant. It is the Plaintiff's case that despite the order of status quo passed in the Suit and the statement made on behalf of the Defendant, the Defendant carried out certain alternations and took possession of certain larger area. The Plaintiff has relied upon the report of the Commissioner appointed under an earlier order in respect of the suit premises. The sketch plan of the premises has been made by the Commissioner. The plan shows various portions of the constructed premises being (1) Lobby, (2) Leather factory, (3) Canteen, open space, W.C. & underground water tank, (4) Godown, (5) Six Cabins, (6) Four cabins, (7) ______________ and (7)(a) Leather machine. The Plaintiff claims Rs.40,70,000/- from the Defendant as per the calculation of the payment of royalty and fees made out in Exhibit-G to this Notice of Motion. The Plaintiff has claimed Rs.85,000/- for the months of May and June 2007. The Plaintiff has claimed Rs.3 Lakhs from July 2007 to July 2008. Thereafter the Plaintiff has again claimed Rs.85,000/- for December 2005 and January 2006 3 and Rs.3 Lakhs from February 2006 to February 2007. 4. The calculation at the rate of Rs.3 Lakhs per month is not upon any contractual rate agreed between the parties or upon any specified rate of interest upon a specified liquidated amount. The Plaintiff' s Advocate argued that that was because the Defendant has encroached upon further portions of the Plaintiff's premises. The Plaintiff' s Advocate could not explain the second column of Exhibit-G. He made a statement that Court may ignore the second column. The claim of Rs.3 Lakhs per month from July 2007 to July 2008 is wholly arbitrary and cannot be granted simplicitor upon an application made by way of interim proceedings. The Plaintiff has not even prima facie shown the entitlement to such amount. The Plaintiff has also not shown that he was the owner of any extended premises. The Commissioner' s report shows that the Defendant' s construction encroached upon further land. The Defendant's Advocate states that that the land is of the Mumbai Municipal Corporation which also the Defendant offers to abandon. 5.On 22nd October 2008, the Defendant took out Notice of Motion No.3752 of 2008 for a decree on admission under Order XII Rule 6 of the Code of Civil Procedure. The Suit is 4 for declaration, possession of the suit premises, recovery of the amount as per the particulars Exhibit-K to the Plaint, injunction and mesne profits. For passing a decree on admission, therefore, in essence, the Defendant must hand back possession of the suit premises and make payment of the agreed amount of compensation calculated by the Plaintiff along with interest claimed by the Plaintiff in Exhibit-K to the Plaint. It follows as a matter of corollary that if from the security deposit of the Defendant any amount remains outstanding, that amount would have to be refunded to the Defendant upon the Plaintiff taking possession of the suit premises as a part of the Plaintiff' s reciprocal promise under the contract. 6.The Defendant has given a security deposit of Rs.30 Lakhs, Exhibit-K to the Plaint shows the total amount of Rs.11,87,718/- payable by the Defendant to the Plaintiff. That amount would have to be decreed as payable to the Plaintiff in the Suit. 7.The said amount of compensation has to be paid even after the filing of the Suit if the Defendant does not hand over the possession. The amount of Rs.85,000/- would have to be paid for the period from the filing of the Suit until the 5 Defendant' s Notice of Motion was taken out making this offer which has not been accepted by the Plaintiff. Hence the amount of Rs.85,000/- per month from March 2007 to October 2008 aggregating to Rs.17,00,000/- would have to be paid. 8.The Plaintiff's Advocate drew my attention to the various orders passed in the Suit granting status quo, appointment of a Commissioner, rejecting the Defendant' s application for condonation of delay in depositing certain amount in this Suit as also a separate Contempt Petition taken out by the Plaintiff. The reliance upon all these orders become purely academic in view of the fact that the Defendant has now sought to hand over possession as well as make payment of the amounts as prayed for by the Plaintiff itself. 9.Whatever be the dispute between the parties, upon the Defendant making an offer itself of passing a decree on admission, all the contentions between the parties come to an end. No issues remain between the parties which need be adjudicated. In fact under the provisions of Order XV Rule 1 of the C.P.C. since the parties would not be at issue on any question of law or fact, the Court may at once pronounce judgment. 6 10.Hence the following order:- ORDER (a) Suit is decreed in terms of prayers (b) and-(c). The amount payable under prayer-(c) shall be adjusted by the Plaintiff from the security deposit. The further amount payable from the date of the filing of the Suit until the date of the Defendant's Notice of Motion i.e. from March 2007 until October 2008 at the rate of Rs.85,000/- per month shall also be adjusted from the security deposit. The balance amount remaining due and payable thereafter shall be refunded by the Plaintiff to the Defendant forthwith. In view of the Defendant's fair offer of passing the decree on admission, no further interest amount shall be payable by the Defendant. (b) The claim of mesne profits as per prayer (a) shall be considered by the Commissioner for Taking Accounts upon an application in that behalf being made by the Plaintiff after the balance amount as aforesaid is refunded by the Plaintiff. 11. The Defendant's Advocate states that the Defendant shall return the suit property to the Plaintiff on 29th January 2009 against receipt of possession. The Plaintiff shall hand 7 over a Demand Draft for the amount refundable on 29th January 2009. 12. Both the Notices of Motion are disposed of accordingly. In view of this order, all other Notices of Motion stand disposed of. (SMT.ROSHAN DALVI, J.)