1 prod-8-wp-7926-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7926 OF 2011 The Brihanmumbai Municipal Corpn. Through The Brihanmumbai Electric Supply & Transport Undertaking .. Petitioner. V/s. Girgaon Co-op. Hsg. Soc. Ltd. .. Respondent. Mr. Phiroze Palkhiwala, along with Mr. Madhukar Kalzunkar with Ms. Minal Dedhia i/b. M/s. Navdeep Vora & Associates, for the Petitioner. Mr. G. B. Sabnis, for Respondent. CORAM : G.S.GODBOLE, J. DATE : 26th SEPTEMBER, 2011. P.C.: Not on board. Upon mentioning, taken on board. 1 Considering the nature of impugned order, the learned Advocates for the parties were requested to advance their arguments. RULE. Rule made returnable forthwith. Mr. Sabnis waives service for Respondent. 2 prod-8-wp-7926-2011.sxw 2 R.A.E. Suit No.1639 of 1989 filed by the Respondent-Society has been decreed by the Trial Court on 29th March, 2011 and a decree for possession is passed on the grounds of nuisance, annoyance, the breach of terms of lease deed dated 14th May, 2003 and on the ground of reasonable and bona fide requirement. The learned Advocate for the Petitioner submits that the Judgment of the Trial Court is perverse since the issue of bona fide requirement and comparative hardship was not framed earlier and it was framed at the time of delivering the Judgment and a decree. The Petitioner has filed Appeal No.33 of 2011 in which application for stay has been filed below Exhibit 7 and by the impugned Judgment and Order dated 6th August, 2011, the said application is allowed, subject to condition that the Petitioner shall pay/deposit a sum of Rs.10,000/- per month from the date of decree. 3 The impugned order is purely interlocutory and has been passed following the law laid down by the Supreme Court in the case of M/s. Atmaram Properties v/s. M/s. Federal Motors Pvt. Ltd. and in the case of State of Maharashtra v/s. M/s. Super Max International Pvt. Ltd. The area of the suit premises is around 48.72 sq. yards and the premises are situated at Girgaon. Considering these facts, a fair and reasonable amount of interim compensation has been fixed and no interference is warranted with the discretion exercised by the Appellate Court in that regard. 3 prod-8-wp-7926-2011.sxw 4 The issue of bona fide requirement and comparative hardship may have been framed later. One cannot lose sight of the fact that the decree is also passed on the grounds of nuisance, annoyance and breach of terms of lease deed. It is needless to state that all contentions of the parties including the contentions of the Petitioner that, in any case decree could not have been passed on the ground of bona fide requirement and comparative hardship, are expressly kept open. 5 The impugned order directs the Petitioner to pay/deposit the amount of compensation. In view of the law laid down by the Supreme Court in the case of State of Maharashtra v/s. M/s. Super Max International Pvt. Ltd. the said direction regarding payment will have to be modified, subject to condition that the Petitioner will deposit the amount in the Small Causes Court and unless and until there are special circumstances, the Respondent will not be permitted to withdraw the said amount. It is also necessary to invest the amount as and when deposited. As and when amount is deposited, the same shall be invested in a Nationalized Bank earning highest interest. 6 Rule is partly made absolute in the aforesaid terms. The impugned order is not interfered with. However, the Petitioner will deposit the amount of Rs.10,000/- per month as compensation with effect from 29th 4 prod-8-wp-7926-2011.sxw March, 2011 till the disposal of Appeal No.33 of 2011, as a condition for grant and continuation of the stay of the execution of the decree for possession. It is further directed that the Respondent shall not be allowed to withdraw the said amount unless in exceptional circumstances and application to that effect has been made and Petitioner is heard. 7 The amount/s as and when deposited shall be invested in a Nationalized Bank earning highest interest till disposal of the Appeal, without waiting for any other directions either from this Court or from the Appellate Court. Time to deposit the amount pursuant to the order dated 6th August, 2011 is extended by eight weeks from today. (G.S.GODBOLE, J.)