IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT No.3084 of 1997 THE BOARD OF TRUSTEES OF THE PORT OF MUMBAI ..PLAINTIFFS VS. M/s. KIRAN CHOUDHURY & CO. .. DEFENDANTS Mr. U.J.Makhija i/b M/s. Mulla & Mulla for the Plaintiffs None for the Defendants CORAM: DR. D.Y.CHANDRACHUD, J DATE : 27TH AUGUST, 2009 P.C. 1. The suit has been instituted for the recovery of an amount of Rs.40,03,087.84, together with future interest. According to the Plaintiffs, the Defendants were appointed as their Advocates on a retainership basis, by a letter dated 16th October 1991. By a letter dated 6th July, 1993, the Defendants sought the allotment of office accommodation on lease. The Board of Trustees of the Plaintiffs, at a meeting held on 27th July 1993, and by a Resolution bearing No.430 of 1993, allotted two rooms at Imperial Chambers, Ballard Estate, to the Defendants on lease for thirty years. The lease rent was Rs.57.20 per sq mt., per month with a further increase at the rate of 4% from 1st October 1992. The lease commenced from 23rd July 1993. According to the Plaintiffs an internal audit revealed that the economic rent worked out by the Estate Manager, based upon the Trustees’ Resolution No.273 of 1987, was incorrect, since updated values were not taken into account. 2. By a letter dated 3rd June 1995, addressed to the Defendants, the Plaintiffs recorded that the lease rent worked out to Rs.542.57 per sq.mt., per month with an escalation of 4% p.a. every October and called upon the Defendants to pay an additional security deposit and the difference in rent. The rate of Rs.542.57 was, according to the Plaintiffs based on the Trustees’ Resolution, bearing No.292 dated 22nd August 1995. In view of the resolution, the difference in the rent was worked out and included in a bill dated 1st December 1995, submitted to the Defendants. The Defendants failed to pay the difference. 3. The retainership of the Defendants was terminated with effect from 30th April 1996. According to the Plaintiffs, the lower rate, which was quoted earlier, was issued through inadvertence and the Defendants were bound and liable to pay the applicable rate. 4. By a letter dated 2nd September 1995, the Estate Manager of the Plaintiffs informed the Defendant that, there were certain other breaches by the Defendants of the terms of the lease interalia by the construction of a mezzanine floor and by subletting the premises. A CBI enquiry is stated to have been taken place. 5. On 14th August 1996.,the Defendants sought a personal hearing from the Chairman of the Plaintiffs. An appointment is stated to have been fixed on 26th August 1996, but the Defendants did not, it is alleged, remain present. 6. By a letter dated 29th August 1996, the Defendants informed the Plaintiffs that, they were vacating the premises. By a letter dated 2nd September 1996, the Defendants offered to surrender the possession of the premises without prejudice to their rights and contentions. By the Plaintiffs’ letter dated 2nd September 1996, the Defendants were informed that, the conditions conditions specified by the Defendants for surrendering the premises were not acceptable but the Plaintiffs would accept unconditional surrender of the premises without prejudice to their rights and contentions. It has been stated that the Plaintiffs have accepted the surrender of possession without prejudice to their right to recover the difference in rent. 7. The claim of the Plaintiffs is towards arrears of compensation in the amount of Rs.31,77,342/-, electricity charges of Rs.28,376/-, penalty for unauthorised subletting in the amount of Rs.6,96,884; and Rs. 1,00,485.20 for unauthorised construction. 8. The Defendants have been served with the Writ of Summons, but have failed to enter appearance. The Plaintiffs have duly proved the claim for arrears of compensation, which has been worked out on the basis of the resolution of the Board of Trustees dated 22nd August 1995 (Serial No.2 of the Compilation of documents). The claim in respect of the electricity charges of Rs.28,376/-, has been proved and is decreed. The balance of the claim of Rs.8,25,745.44, which is in the nature of damages for unauthorised subletting and for unauthorised construction has not been proved. No evidence has been adduced in respect of the claim for damages. That part of the claim shall, therefore, stand dismissed. 9. The suit is accordingly decreed in the amount of Rs. 31,77,342.40, towards arrears of compensation and Rs. 28,736/- towards electricity charges. The Plaintiffs shall be entitled to the interest on the aforesaid amount at the rate of 9% p.a. from the date of the suit until payment or realisation. The Plaintiffs will be entitled to the costs of the suit. (Dr. D.Y.Chandrachud, J.)