-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.1343 of 2008 Punjab National Bank ..Petitioners vs. Sandeep Traders ..Respondents Shri N.V.Walavalkar, Sr.Counsel i/b Shri P.J.Ramchandrani for petitioner. Ms.Alpana Ghone with Shri P.L.Bachani with Shri Jay Joshi i/b I.R.Joshi and Co. for respondents. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 28th March, 2008 28th March, 2008 28th March, 2008 P.C. P.C. P.C. 1. This writ petition under Article 227 of the Constitution of India is directed against the order passed by the Appellate Bench of Court of Small Causes at Mumbai. By order dated 20th December, 2007, the Appellate Bench has dismissed the Appeal. The appeal was preferred by the present petitioners who are the original defendants. It appears from the record that the respondents are the original plaintiffs. They filed the suit in the Court of Small Causes for possession against the present petitioner. It further appears that the said suit was decreed. It is further appearing from the record that the petitioners have abided by the decree of -2- possession and have in deed surrendered and handed over vacant possession of the suit premises. 2. It appears that an application being Misc. Notice No.125 of 2004 was moved in the subject suit seeking enquiry and direction with regard to mesne profit. The case of the present petitioner Bank is that the said enquiry went on in their absence and concluded in an order and decree for payment of mesne profit. That order is delivered on 2nd September, 2006. The order and decree of mesne profit directs payment of nearly Rs.1 crore by the present petitioners towards mesne profit. I am informed by Ms. Alpana Ghone appearing for the original decree holder that the amount is now in the tune of Rs.1 crore and Rs.15 lacs. 3. Be that as it may, the grievance of the petitioner Bank is that it applied for setting aside this exparte decree of mesne profit by filing an application under Order IX Rule 13 of the Code of Civil Procedure. That application was dismissed by the Trial Court and dismissal has been upheld by the lower Appellate Court. -3- 4. Shri Walawalkar, learned Senior Counsel appearing for the petitioner Bank, has invited my attention to the order passed by the lower Appellate Court and contended that the Bank was under the bonafide impression that there was a stay to the enquiry pertaining to mesne profit. In fact, both sides genuinely and bonafide believed that there was a stay and, therefore, the petitioner Bank was expecting another notice intimating it about the date and time of enquiry. It is under this bonafide belief that the Bank did not appear and that is how the request was made to set aside the exparte order. It is his case that the Bank would have abided by all such conditions as are imposed by the Court below but in the peculiar facts of this case an opportunity should have been given to the Bank. His next submission is that the decree was passed by a Bench of Court of Small Causes. Rather, the decree was passed at Bombay which is the main bench whereas the premises are located in the suburbs. The Small Causes Court has a bench at Bandra, Mumbai and the matter falls within the jurisdiction of that Bench. Therefore, at the main seat, an enquiry could not have been conducted and that is how the Bank put forward the additional reason to set aside -4- the exparte order. 5. Ms.Ghone has supported the impugned order and has urged that the notice was duly served. The petitioner is a Bank and not an illiterate litigant who is unaware of the Court proceedings. The Bank has engaged an Advocate. It was the duty of the Bank Officer and the Advocate to watch the proceedings and make arrangement for appearance. This is the only ground put forward and Courts below have rightly held that this is not a sufficient cause. There are conclusions recorded concurrently with regard to lack of any sufficient cause and this Court in its jurisdiction under Article 227 cannot interfere with the same even if another view was possible. Consequently the writ petition should be dismissed. 6. After perusing the writ petition and the annexures thereto, so also the impugned order I am of the opinion that the Small Causes Court should have in the peculiar facts of this case granted an opportunity to the petitioner Bank to contest the claim of mesne profit. It is not as if the Bank had not put forward any case. On own showing of the parties for atleast limited -5- duration the proceedings were held in abeyance. The stay was operative. The fact remains that even if the same was operative the petitioner should have made arrangement for their appearance. It is not as if they were unaware of the pendency totally. In such circumstances, it was their duty to remain present. However, at least for some duration the proceedings were in abeyance the Bank has surrendered possession and that the Bank has agreed to abide by such conditions as are imposed by this Court including the deposit of some amount. 7. Shri Walavalkar, learned Senior Counsel makes a statement that a sum of Rs.20,00,000/- has already been deposited in the Trial Court. In my view taking a complete picture of the matter and on account of the fact that it cannot be said that the petitioner was totally negligent, the order under challenge can be set aside by imposing condition of deposit of Rs.25,00,000/- more. Thus, if the Bank deposits a sum of Rs.25,00,000/- in addition to the sum of Rs.20,00,000/- already deposited, the orders under challenge would be set aside and enquiry into mesne profit which has been commenced by the Misc. Application No.125 of 2004 shall -6- recommence afresh. In other words the decree of mesne profit passed on 2nd September, 2006 stands quashed and set aside on the deposit of sum as above. The enquiry shall commence only after compliance is made with this statement. Now the enquiry shall be made before the learned Judge presiding over the Small Causes Court at Bandra, Mumbai. Considering the peculiar facts of this case the Trial Court is directed to expedite the said enquiry. Shri Walavalkar states that some time may be granted to deposit the further sum. Interest of justice would be subserved if the period of four weeks is granted to deposit the further sum of Rs.25,00,000/- At this stage Ms.Ghone appearing for the respondents applies for withdrawal of atleast some amount which is to be deposited. Shri Walavalkar, Sr.Counsel states that since the enquiry is expedited permission may not be granted. 8. In the light of the fact that the enquiry was held and decree was passed and the decree has been set aside today, interest of justice would be subserved if the respondent is permitted to withdraw a sum of Rs.20,00,000/- upon furnishing security to the satisfaction of -7- the Trial Court. Needless to state that the petitioner Bank is at liberty to file written statement and also the affidavits in lieu of examination in chief of their witnesses. However, it is clarified that in so far as the plaintiffs’ witnesses are concerned, their affidavits in lieu of examination in chief are already on record. Upon copies thereof being furnished to the petitioner bank, the Bank will be at liberty to cross examine these witnessess. 9. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)