SRJ wp-8422-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8422 OF 2009 L Oreal India Pvt.Ltd. ..Petitioners. Vs. Global Earth Properties & Developers Pvt.Ltd. ..Respondents. Mr.G.S.Godbole i/b. M/s.Nankani & Associates, for Petitioners. Mr.S.U.Kamdar, Sr.Advocate with Mr.P.K.Shroff, with Mr.Sanjay Kotak, with Mr.D.V.Deokar, with Ms. Bharti Bhagwat, with Mr.Medhavin Bhatt with Mr.Himanshu Yahoyan i/b. M/s. Parimal K.Shroff & co., Advocates for Respondents. CORAM : A.S.OKA, J.. DATE : 8th October, 2009. P.C. : 1] The submissions of the learned Counsel appearing for the parties were heard yesterday. 2] The Petitioners are the Defendants in a suit filed by the Respondents under section 41 of the Presidency Small Causes Courts Act, 1882. During pendency of the suit, an application was made by the Respondents/Plaintiffs for grant of interim relief. On the said application, the learned Trial Judge passed the following order:- SRJ wp-8422-09.sxw 2 O R D E R The notice Ex.6 is hereby made partly absolute as under:- Without prejudice to the rights and contentions of the parties in the suit the defendants are hereby directed to deposit in court Rs. 1,18,160/-per day on account of interim mesne profits/liquidated damages payable since 1.6.2007 till the date of this order within a period of one month from the date of this order. The defendants shall continue to deposit such interim mesne profits/liquidated damages at the rate of Rs.1,18,160/- per day payable from 8.5.2009 till the disposal of the suit and the payment of the liquidated damages shall be made by the end of each month and every month till the disposal of the suit. The defendants shall deposit the amounts on account of interim mesne profits/liquidated damages in court and the plaintiff shall be at liberty to withdraw the amount as and when deposited by defendants. No order as to costs. 3] A Revision Application was preferred by the Petitioners for challenging the said order. In the Revision Application which is pending before the Appellate Bench of the Court of Small Causes, an application for the stay of the operation of the impugned order was made by the Petitioners. The contention of the Petitioners appears to be that they are liable to pay compensation @ Rs.66,170/- per day. SRJ wp-8422-09.sxw 3 The contention of the Respondents is that in terms of the agreement between the parties, the liability of the Petitioners is to pay compensation @ Rs.1,18,160/- per day. After noting the rival submissions, the Appellate Bench disposed of the application for stay by an order dated 8th July, 2009 by directing that the operation of the order will remain stayed, subject to the condition of the Petitioners depositing damages @ Rs.80,000/-per day from 1st June, 2007 till the Revision Application was decided. The Court directed that the amounts previously paid or deposited shall be adjusted. The challenge in this Writ Petition under Article 227 of Constitution of India is to the further order dated 16th September, 2009 passed by the Appellate Bench by which the Respondents/Original Plaintiffs were permitted to withdraw a sum of Rs. 1,17,47,192/-. 4] The submission of the learned counsel appearing of the Petitioners is that withdrawal of the amount could not have been permitted in asmuch as the Revision Application is still pending for final hearing. He further submitted that till the disposal of the Revision Application, the amount cannot be permitted to be withdrawn. The learned Senior Counsel appearing for the Respondent submitted that the rate SRJ wp-8422-09.sxw 4 fixed by the Trial Court is in terms of an agreement between the parties. He submitted that the suit is pending and, therefore, the withdrawal of the amount will be subject to final outcome of the suit. He submitted that the Respondents are holding valuable property including the property subject matter of dispute and, therefore, even if the amount is withdrawn by the Respondents, the same is adequately secured. He submitted that no interference can be made under Article 227 of the Constitution of India. 5] I carefully considered the submissions. It is not necessary at this stage to go into merits of the controversy involved in the Revision Application as the same is pending for final hearing. As per the case of the Petitioners, their liability from 1st June, 2007 is to pay the amount @ Rs.66,170/-. While passing the impugned order, the Appellate Court has given the break-up of the amount deposited by the Petitioners. The Court observed that:- In this case the appellants deposited the amount of Rs. 1,17,47,192/- calculated upto 31.07.2009 deducting the amount paid for respondents by ECS Rs. 4,32,61,808/- and TDS from the aforesaid amount, Rs.83,51,000/-. SRJ wp-8422-09.sxw 5 6] The amount of Rs.1,17,47,192/- represents the amount payable as per interim order dated 8th July, 2009 upto 31st July, 2009. A deduction of Rs.4,32,61,808/- has been made on account of payment made by ECS and a deduction of Rs.83,51,000/- has been made on account of TDS paid. 7] There is no dispute as regards the liability of the Petitioner to pay @ Rs.66,170/- per day from 1st June, 2007. The Revision Application is yet to be decided on merits. Even if the Revision Application is allowed, the liability of the Petitioners to pay @ Rs.66,170/- will continue till the disposal of the suit. Therefore, the Respondents shall be entitled to withdraw the undisputed amount calculated at the rate of Rs.66,170/- per day. The amount deposited in terms of the order dated 8th July, 2009 over and above Rs. 66,170/- per day cannot be permitted to be withdrawn unconditionally. As far as the said balance amount (over and above Rs.66,170/- per day) payable with effect from 1st July, 2007 is concerned, the Respondents will be permitted to withdraw the said amount subject to furnishing security to the satisfaction of Appellate Court. The learned Senior counsel appearing for the Respondents submits that SRJ wp-8422-09.sxw 6 the security of the disputed premises may be accepted. However, it is for the Appellate Court to decide this aspect. 8] As far as the amount permitted to be withdrawn under the impugned order is concerned, the same represents the balance amount payable in terms of order dated 8th July, 2009. The Respondents can unconditionally withdraw only the agreed amount at the rate of Rs.66,170/- per day and for the balance amount, a security will have to be furnished. However, certain amounts have been paid by way of ECS and even TDS has been deducted which is referred to in the paragraph 4 of the impugned order. After considering the said amounts, the Appellate Court will have to decide as to how much amount can be unconditionally withdrawn by Respondents. For the balance amount, the Respondents will have to furnish security to the satisfaction of the Appellate Court. The amounts which will deposited hereinafter will have be permitted to be withdrawn by applying the same formula. 9. Hence, Petition is disposed of by passing the following order:- SRJ wp-8422-09.sxw 7 (i) The impugned order is modified. The Respondents are entitled to withdraw without securing the amount payable from 1st June, 2007 @ Rs.66,170/-per day. The withdrawal of the balance amount will be permitted subject to the Respondents furnishing security for the balance amount to the satisfaction of the Appellate Court. (ii) The entitlement of the Respondents to withdraw the amount out of balance amount of Rs.1,17,47,192/- will have to be determined by Appellate Court after hearing the parties as directed by paragraph 8 above. The Appellate Court will complete the said exercise within two weeks from the date on which an authenticated copy of this order is produced. (iii) It is observed that this arrangement will be subject to the final outcome of the Revision Application. (A.S.OKA, J. )