spb/- 1 cac321-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL APPLICATION NO. 321 OF 2009 IN CIVIL REVISION APPLICATION NO. 549 OF 2008 Shanu Jaikishen Mirchandani ... Applicant. (Org.Plaintiff/Decree Holder). V/s. Mohan Udharam Lalwani ... Respondent. (Org.Defendant/ Jud..Debtor) --- Mr. C.T. Kriplani for the Applicant. Mr. P.S. Dani a/with Punita Soni i/by Bilawala & Co. for the Respondent. ----- CORAM : G.S. GODBOLE, J. DATE : 02nd SEPTEMBER, 2011. P.C. : 1 Heard Mr. Kriplani for the Applicant and Mr. Dani for the Respondent. 2 In a suit for eviction filed in respect of the residential premises ad- measuring 450 sq. ft. situated Worli on the ground of bonafide requirement, the trial court after recording a finding of bonafide requirement in favour of the plaintiff, dismissed the suit only on account of the finding on the question of hardship. The appeal filed by the applicant has been allowed by the appellate bench by the judgment and order dated spb/- 2 cac321-09.sxw 17.07.2008 and the decree for eviction has been passed on the ground of bonafide requirement and denial of title. 3 While admitting this civil revision application on 16th February, 2009, the learned single Judge of this court has granted interim relief in terms of prayer clause (c) and thus execution of the decree was stayed. The application for determination of mesne profit filed by the applicant has also been stayed by the trial court in view of the aforesaid interim order passed in the civil revision application. Thereafter, this civil application has been filed for imposing a condition for grant of stay. Perusal of the application shows that principally two reliefs have been sought one -(a) in respect of arrears of the society maintenance charges and (b) in respect of the market rent. According to the applicant, at a conservative return of 8% per annum on the ready reckoner value of about Rs. Eighty lakhs, the respondent is liable to pay a sum of Rs.Fifty thousand per month. An affidavit in reply has been filed by the respondent in which it is stated that the respondent has retired in December, 2009, is 67 years of age and earning a pension of Rs. 8,464/- per month. A rejoinder has been filed by the applicant in which the aforesaid fact of the respondent being a retired person has not been disputed. It is also necessary to note that according to the respondent market price of the suit premises would be around spb/- 3 cac321-09.sxw Rs.Fifty eight lakhs . 4 At the outset, in so far as the society maintenance charges are concerned, Mr. Dani, learned counsel for the respondent states that the respondent being a person in occupation of the flat must bear payment of society maintenance charges. According to him, as on today total outstanding amount is around Rs.1,60,000/-. Mr.Dani states that two cheques drawn in favour of the applicant, amounting to Rs. 54,404/- and Rs.42,840/- are being handed over to the applicant through his Advocate without prejudice to the rights and contentions of the respective parties. The said cheques are accepted. In so far as the balance amount of the society maintenance charges including the charges for the month of September, 2011 are concerned, the respondent assures the court that the same will be paid to the applicant through his Advocate on or before 30th September, 2011. This assurance in the form of the statement of the learned Advocate for the respondent is accepted. 5 So far as future amount of the society maintenance charges are concerned, the respondent agrees to continue to pay the said amount by cheques drawn in the name of the applicant which shall be handed over to spb/- 4 cac321-09.sxw the Advocate of the applicant within a period of two weeks, after the Advocate for the applicant intimates the outstanding amount which is stated to be the bill for two months to the Advocate for the respondent alongwith the photo copy of the bill. Even this assurance is accepted. . 6 This takes me to the other question as to how much amount should be directed to deposit by the respondent as a condition for continuation of the interim order for the period commencing from 17.07.2008, which will be in the nature of rent of the suit premises. Mr. Patil relied upon the judgments of the Supreme Court in 2005 (3) Bom.C.R.274 - Atma Ram Properties vs. Federal Motors and 2009 (5) ALL MR 1001 - State of Maharashtra & Anr. vs. M/s . Supermax International Pvt. Ltd.. Mr. Dani on the other hand states that these judgments do not lay down any proposition that the amount can be fixed by the court without having regard to the financial status and ability of the judgment debtor to pay the amount. 7 After having carefully considered the facts and considering that while admitting the revision application on 16th February, 2009, after hearing the Advocate for the applicant herein, the learned single Judge of this Court has granted interim relief of stay for eviction of decree and spb/- 5 cac321-09.sxw considering the financial status of the parties and the location of the premises, a reasonable figure will have to be arrived at. The suit premises is a Flat situated at Worli which is in a good locality in Mumbai. So far as the Applicant is concerned, the Applicant has averred that the Applicant gets a pension of Rs.358/- per month. So far as the Respondent is concerned, the Respondent has stated that the Respondent earns a pension of approximately Rs.8000/- per month. During the course of arguments, Mr.Dani states that both the daughters of the Respondent are married and are staying with their respective husbands and that the wife of the Respondent has recently been detected with cancer and the respondent has to bear the burden of her treatment. 8 The respondent herein has already been directed to pay the society maintenance charges and to that extent the liability of the applicant to pay the said amount has been taken care of. In so far as the amount which should be paid by the respondent is concerned, considering the fact that the respondent is also a senior citizen, earning a pension of approximately Rs.8000/- and further considering the fact that the respondent would be required to pay maintenance charges w.e.f. 17.07.2008, in my opinion, the following amounts should be deposited by the Respondent : spb/- 6 cac321-09.sxw a) for the period commencing from 17.07.2008 till 16.02.2009, the date of admission of the CRA, the respondent shall deposit compensation at the rate of Rs.4,000/- per month. b) for the subsequent period from 17.02.2009 till 30.08.2011, the Respondent shall deposit an amount of Rs.5,500 per month. c) for the period commencing from 1st September, 2011 till the date of disposal of the Civil Revision Application, the Respondent shall deposit a sum of Rs.6000/- per month. d) In so far as the balance amount of society maintenance charges are concerned, the respondent shall pay the same to the applicant on or before 30th September, 2011. The future society maintenance charges shall be paid by the respondent to the applicant within two weeks from the date of intimation of the quantum of the society maintenance charges by the Advocate of the Applicant to the Advocate of the Respondent. 9 Hence, I pass the following Order : A] As a condition for continuation of the interim relief of stay of execution of the decree for eviction, the respondent shall deposit the following amounts in this court and pay the Society maintenance to the Applicant : spb/- 7 cac321-09.sxw a) for the period commencing from 17.07.2008 till 16.02.2009, the date of admission of the CRA, the respondent shall deposit compensation at the rate of Rs.4,000/- per month. b) for the subsequent period from 17.02.2009 till 30.08.2011, the Respondent shall deposit an amount of Rs.5,500 per month. c) for the period commencing from 1st September, 2011 till the date of disposal of the Civil Revision Application, the Respondent shall deposit a sum of Rs.6000/- per month. d) In so far as the balance amount of society maintenance charges are concerned, the respondent shall pay the same to the applicant on or before 30th September, 2011. The future society maintenance charges shall be paid by the respondent to the applicant within two weeks from the date of intimation of the quantum of the society maintenance charges by the Advocate of the Applicant to the Advocate of the Respondent. B] The amounts indicated in sub-clauses (a) and (b) being the arrears shall be deposited in equal monthly installments within a period of six months from today. As and when the amounts are deposited, the same shall be invested in a fixed deposit in a nationalized bank which gives highest interest and till further orders, the deposit shall be renewed. So spb/- 8 cac321-09.sxw far as the amounts indicated in clause (c), payable w.e.f. 1st September, 2011 are concerned, the same shall be deposited on or before 15th of every month. Even this amount, as and when deposited, shall be invested in a fixed deposit in a nationalized bank that gives highest rate of interest. C] In case of any default in payment of the aforesaid amount, the applicant would be at liberty to file an application for vacating the interim relief and for other suitable directions. D] Civil application is disposed of in the aforesaid terms with no order as to costs. [G.S. GODBOLE,J] .....