1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7849 OF 2008 WITH WRIT PETITION NO.7843 OF 2008 WITH WRIT PETITION NO.7847 OF 2008 WITH WRIT PETITION NO.7848 OF 2008 M/s.Radium Garments Pvt Ltd. .. Petitioner (In all the petitions) versus M/s.Fab Fashions .. Respondent (In all the petitions) Mr. P.K .Dhakephalkar Sr. Advocate with Mr.Jitendra Ahuja i/by M/s.Khilnani & Co for the petitioner. Smt.Rita Bhatia for the respondent. CORAM : A.S.OKA, J. DATE : 18th March 2010. JUDGMENT: . The petitions were taken up for final disposal at admission stage on the earlier date. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. The petitioner claims to be the owner of Unit Nos.208 and 209 in Prakash Industrial Premises Co-operative Housing Society Limited. 2 According to the case of the petitioners, Leave and Licence was granted by their predecessors to the respondent to use and occupy the said Unit Nos. 208 and 209. The petitioners purported to terminate the licence granted to the respondent and filed two separate suits for possession of Gala Nos.208 and 209 respectively. The suits are pending. Writ Petition No.7847 of 2008 and Writ Petition No.7849 of 2008 arise out of suit filed relating to Gala No. 209 and Writ Petition No.7843 of 2008 and Writ Petition No.7848 of 2008 relate to suit in respect of Gala No.208. 3. In both the suits applications(in the form of notices) were made by the petitioner seeking a direction against the respondent to deposit arrears of rent/compensation. The applications were allowed by the learned trial Judge by judgment and order dated 26th July 2006. The learned trial Judge directed the respondent to deposit arrears of compensation at the rate of Rs.1100/- per month together with maintenance charges payable to the co-operative society with effect from July 1998 till 2006. The maintenance charges were made payable as shown in the bill issued by the Society. The said arrears were directed to be deposited within a period of three months from the date of the order. The respondents were directed to pay compensation at the rate of Rs.1100/- per month plus maintenance charges charged by the Society till the final disposal of the suit on or before tenth day of every calendar month. As compliance was not made by the respondent with the said order, in both the suits, notices were taken out by the petitioner for striking out the defence of the respondent. Notices were made absolute by the trial Court. There 3 were separate revision applications preferred by the respondent for challenging the orders passed by the trial Court on interim notices directing deposit of the compensation and maintenance charges. There were separate revision applications preferred for challenging the order by which defence of the respondent was ordered to be struck out. The revision applications preferred by the respondent for challenging orders of deposit were partly allowed and the respondent was directed to deposit compensation at the rate of Rs.1100/- per month from the date of the suit in the Court and the petitioner was restrained from withdrawing the said amount. 4. The revision applications preferred by the respondent for challenging the orders striking out the defence were allowed by setting aside the said orders. The said orders were passed in view of the orders passed on revision applications directed against the orders of deposit. The aforesaid orders passed in the four revision applications have been challenged by the petitioner by filing the present Writ Petitions under Article 227 of the Constitution of India. 5. The learned senior counsel appearing for the petitioners placed reliance on the provisions of Order 15A of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Act). He submitted that there was sufficient material on record to show that the petitioners are the owners of 4 Unit Nos.208 and 209. He submitted that under Order 15A of the said Code the Court had power to direct the respondent to deposit the arrears of compensation and society charges from a date prior to the institution of the suit. He invited my attention to the fact that the respondent has not deposited any amounts in compliance with orders passed in revision applications directing payment of amount at the rate of Rs.1100/- per month from the date of institution of the suit though the respondent has not challenged the said orders. He invited my attention to the order passed by this Court on 28th July 2009 which records statement of the learned counsel appearing for the respondents that amounts will be deposited as per the orders passed in revision applications. He submitted that the respondent has not shown bonafides by depositing any amount. He submitted that the order of the trial Court directing deposit of the charges payable to the society as per bill raised by the society was fully justified. He invited my attention to the letters issued by the society showing the amounts paid by the petitioner to the society. He submitted that as the respondents are occupying the suit premises, there was every justification for the trial Court to pass order for deposit of arrears. He, therefore, submitted that the orders of the trial Court deserve to be restored. 6. The learned counsel appearing for the respondent supported the impugned orders and submitted that no interference is called for with the impugned orders passed by the Appeal Bench of the Court of Small Causes 5 in the revision applications. The respondent has filed two undertakings dated 4th March 2010. One undertaking as regards payment of compensation and the other undertaking is as regards payment of maintenance charges. As far as payment of compensation is concerned, the respondent has undertaken to deposit compensation at the rate of Rs.1100/- per month in respect of both the galas as per the order dated 7th October 2008. An undertaking has been also given to deposit a sum of Rs.1100/- per month in respect of both the galas till the disposal of the suits. As far as maintenance charges are concerned, in the undertaking it is stated that the respondent is ready and willing to pay an amount of Rs.1,24,205.06/- being arrears of society charges in respect of Gala No.208. The said amount represents the arrears upto 28th February 2010. The respondents have also undertaken to pay a sum of Rs. 1,25,542.52/- being the arrears of society charges in respect of Gala No.209. The said amount covers arrears up to period ending with 28th February 2010. It is further stated that the respondent is ready and willing to keep on depositing society charges in respect of both the premises with the society on production of bills issued by the society. It is stated in both the undertakings that the deposit of the amounts will be without prejudice to the rights of the respondent in the pending suits. 7. I have given careful consideration to the submissions. The suits for possession filed by the petitioner against respondents are pending in the Court of Small Causes. There is no dispute that the respondent is in 6 possession of the said two industrial galas which are subject matter of the suits. It is also not in dispute that the respondent has not paid any amounts towards compensation or towards the charges payable to the society. The documents are placed on record issued by the society showing the amounts paid by the petitioner towards maintenance charges and the amounts which are outstanding. There is prima facie material on record to show that the petitioner has been recognised as the owner of the industrial galas by the said society. 8. There is merit in the submission made by the learned senior counsel appearing for the petitioner that under 15A of the Code of Civil Procedure, 1908 there is a power vesting in the Court to direct a licensee to deposit arrears of licence fee and future licence fee. There is a power vesting in the Court to issue a direction to pay arrears for a period prior to the date of institution of the suit. However, it is the discretion of the Court to pass such orders. 9. The revisional Court has not interfered with the quantum of compensation payable at the rate of Rs.1100/- per month. While allowing the revision applications preferred by the respondent, the compensation at the rate of Rs.1100/- payable in respect of both the galas has been made payable from the date of filing of the suit. Now there is an undertaking of the respondent filed on record by which the respondent has undertaken to pay 7 the amount of compensation as per the orders in revision. As far as modification made by the Appeal Bench directing deposit of the amount from the date of suit is concerned, it is not possible to interfere with the discretionary order of the revisional Court. However, it cannot be disputed that the suit premises are in a co-operative society and therefore maintenance charges are payable in respect of the suit premises. The respondent has given an undertaking to pay arrears of maintainance charges as stipulated in the undertaking directly to the society. The respondent has undertaken to keep on paying the society charges directly to the society on bill of the society being handed over to the respondent. To that extent the impugned orders will have to be modified. 10. In the undertaking , the respondent has stated that receipts will have to be issued for the payment made to the society. It is obvious that the respondent will be paying the amount to the society on behalf of the petitioner and therefore, the receipt will be issued by the society in the name of the petitioner. The respondent cannot refuse to pay the amount payable to society on the ground that the receipt will be issued in the name of the petitioner. It is obvious that payment of the amounts by the respondent to the society will be without prejudice to the rights and contentions of the respondent and subject to final out come of the suit. 11. The Appellate Court by the impugned orders has restrained the 8 petitioner from withdrawing the amount deposited at the rate of Rs.1100/- per month. The suit premises are the galas in an Industrial premises Co- operative society. The society has accepted the status of the petitioner as the member. There is a prima facie evidence on record to show the title of the petitioner and therefore the amounts deposited by the respondent at the rate of Rs.1100/- per month will have to be permitted to be withdrawn by the petitioner. The withdrawal will be naturally subject to final outcome of the suit. It is not the case of the respondent that there is any rival claim made by the any party to recover the compensation amount from the respondent. 12. As far as orders passed by the revisional Court setting aside the order striking out defence are concerned, the said orders will have to be confirmed. If the respondent commits any default hereinafter, it is obvious that the petitioner will be entitled to apply afresh for striking out the defence of the respondent. Therefore, Writ Petition No.7849 of 2008 and Writ Petition No.7848 of 2008 will have to be rejected and Writ Petition No.7843 of 2008 and Writ Petition No.7847 of 2008 are required to be partly allowed. 13. Hence, I pass the following order: : O R D E R : (a) Writ Petition No.7848 of 2008 and Writ Petition No.7849 of 2008 are rejected. However, if any further breach is committed by the 9 respondent, it will be open for the petitioner to take out fresh applications for striking out the defence of the respondent. (b) Writ Petition No.7843 of 2008 and Writ Petition No.7847 of 2008 are partly allowed and the impugned orders are modified. (c) The undertakings of the respondent which are marked “X” and “Y” for identification are accepted. (d) The respondent is directed to deposit with the trial Court the compensation at the rate of Rs.1100/- per month in respect of both the galas subject matter of the suits from the date of institution of the suit till 31st March 2010 on or before 19th April 2010. No further time will be granted to deposit the said amount. (e) The respondent is directed to deposit with the trial Court the sum of Rs.1100/- per month in respect of both the galas from April 2010 onwards on or before tenth day of every calendar month. The respondent shall continue to deposit the said amounts till the disposal of the suits. (f) If any default is committed by the respondent in deposit of the aforesaid amounts, it will be open for the petitioners to apply for striking out defence of the respondent. (g) As and when the amounts are deposited, it will be open for the petitioner to withdraw the said amounts subject to final outcome of the suits. (h) The respondent is directed to deposit with said society the 10 amounts of Rs.1,24,505.06/- and Rs.1,25,542.52/- respectively within a period of four months from today. The respondent shall report compliance by filing affidavits before the trial Court enclosing therewith receipts issued by the society. If compliance is not made by the respondent by depositing the aforesaid amounts with the society within a period of four months from today, the defence of the respondent in the suit will stand struck out without further reference to the Court. (i) The petitioner shall submit true copies of the bills for maintenance charges received from the society to the respondent. On receipt of the copy of the bill, the respondent will pay the maintenance charges directly to the society within a period of two weeks from the date on which a copy of the bill is received by the respondent from the petitioner. It is made clear that the respondent will not be entitled to insist on society issuing receipt in the name of the respondent. (j) If the respondent commits any default in payment of amounts hereafter payable to the society, it will be open for the petitioner to apply for striking out the defence of the respondent. (k) Payment and/or deposit of the amounts in terms of this order by the respondent will be without prejudice to the rights and contentions of both the parties and subject to final outcome of the suits. (l) All contentions of the parties on merits of the pending suits are kept open. 11 (m) The parties concerned and the Court to act upon an authenticated copy of this order. (A.S.OKA,J)