1 wp4237.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4237 OF 2011 M/s. Cafe Royal .. Petitioners. vs Oriental Insurance Co. Ltd. & ors. .. Respondents. Mr. Vyankatesh Dhond i/b. Ashok K. Goel, advocate for petitioners. Mr. V. Y. Sanglikar, advocate for respondent No. 1. CORAM: MOHIT S. SHAH, C. J. AND GIRISH GODBOLE, J 19 July 2011 P.C. 1. Petitioner has challenged the order dated 3/5/2011 passed by the learned Judge, City Civil Court, Mumbai in Notice of Motion No. 3064 of 2010 in Mis. Appeal No. 98 of 2009 (Exh. V page 217-226) whereby the said motion was rejected. 2. The respondent No. 1 had filed proceedings under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for eviction of petitioner from suit premises namely, shop no. 6 on the ground floor of Oriental Mansion, opposite Regal Cinema, Mumbai (pages 46-53), which was opposed by the petitioner by filing written statement (Exh. B pages 54-61). 2 wp4237.11 3. By order dated 2/4/2009 the Estate Officer passed an order of eviction of the petitioner and directed recovery of Rs. 2,55,225/- per month with effect from 1/5/2002 till the date of delivery of possession (pages 73-124). Aggrieved by the said order, the petitioner filed Misc. Appeal No. 98 of 2009 under the PP Act, 1971 and filed stay application No. 182 of 2009 for stay in which a conditional order dated 21/4/2009 was passed directing the petitioner to deposit Rs. 50 lakhs and a bank guarantee of Rs. One crore and two sureties for the balance amount to the satisfaction of the court (Exh. D 125-127). This order was challenged in WP No. 5488/2009 which was disposed of on 14/7/2009 by reducing the payment to 25% of Rs. 1,42,22,410/-; bank guarantee of Rs. One crore and security for the balance amount (Exh. E & F pages 128 -131). SLP(Civil) No. 21823 of 2009 filed by the petitioner was disposed of on 19/7/2010 (Exh. H pages 134-134-B) and petitioner was directed to deposit 25% of Rs. 2,11,83,675/-, after deducting Rs. 30 Lakhs already deposited pursuant to ad-interim order dated 7/9/2009 and furnishing security other than bank guarantee of Rs. One crore to the satisfaction of the Estate Officer. The petitioner accordingly deposited additional amounts of Rs. 5,30,603/- and Rs. 17,65,316/- and offered security of immovable property claiming to 3 wp4237.11 be valued more than Rs. One crore (Exh. K pages 138-155) and thereafter also submitted valuation report etc. Since this was not accepted, the petitioner filed Notice of Motion No. 3064 of 2010 in Mis. Appeal No. 98 of 2009 (Exh. N pages 159-163) with affidavit in support (Exh. O pages 164-179) and additional affidavit (Exh. P pages 181-185). The respondents filed reply and petitioner filed rejoinder thereafter. 4. The notice of motion is rejected on the ground that proper remedy was to file an appeal against the order of the Estate Officer refusing to accept the security and the notice of motion was not maintainable. It is also held in para-11 at page 224 that the petitioner should have challenged the order of Estate Officer before the Supreme Court. 5. At the hearing of the petitioner Mr. Dhond, learned counsel for the petitioner submitted that the substance of the prayers in the Notice of Motion is to challenge the order dated 27 September 2010 of the Estate Officer, in so far as the Estate Officer has not accepted the security offered by the petitioner. According to the petitioner, it is in compliance with the order of the Hon’ble Supreme Court. Learned counsel for the petitioner submits that the petitioner would 4 wp4237.11 like to amend the prayers in the Notice of Motion to bring them in line with the above submission. 6. Having heard the learned counsel for the parties we are of the view that since Misc. Appeal No. 98 of 2009 is very much pending before the learned Judge, City Civil Court, Mumbai and the impugned order was passed by the Estate Officer in the course of carrying out the orders passed by the Apex Court, which is admittedly to operate during pendency of the appeal, the learned Judge, City Civil Court ought to have decided the Notice of Motion on merits of the controversy between the parties i.e. about correctness or otherwise of the valuation of the security offered by the petitioner. 7. In view of the above, we set aside the impugned order dated 3 May 2011 and restore the Notice of Motion No. 3064 of 2010 to the file of the learned Judge, City Civil Court, Greater Bombay and grant liberty to the petitioner to amend the prayers in the Notice of Motion No. 3064 of 2010 in Misc. Appeal No. 98 of 2009. The amendment be carried out within 10 days from today. The learned Judge, City Civil Court, Greater Bombay shall hear the parties afresh on merits of the controversy and decide the Notice of Motion 5 wp4237.11 in accordance with law as expeditiously as possible after taking into consideration the observations made in this order. Petition is accordingly allowed in the aforesaid terms. It is also clarified that we have not gone into the merits of the contentions of the parties and all questions are kept open. CHIEF JUSTICE GIRISH GODBOLE, J