: 1 : nms-1436-06=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1436 OF 2006 IN SUIT NO. 1222 OF 2006 Salma Gul Hasan Shah & Anr. .. Plaintiffs v/s. Rakash Deviprasad Gupta .. Defendant ......... Mr. S.D. Mogre for the plaintiffs Mr. R.V. Singh for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 16th SEPTEMBER,2010. P.C. : 1. This suit is filed by the plaintiffs for recovery of possession of the suit premises from the defendant on the ground that the conducting agreement dated 6th June, 1999 has come to an end and the defendant has no right to remain in possession of the suit premises. Plaintiffs have taken out this notice of motion seeking injunction restraining defendant from creating third party rights and / or parting with possession in regard to Shop No.10 i.e. suit premises described in prayer clause (a) of the notice of motion. Plaintiffs have also demanded compensation @ Rs.2800/- per month being the licence fees as prayed : 2 : nms-1436-06=.sxw for in prayer clause (b) of the notice of motion. According to plaintiffs defendant has not paid compensation from July, 2005 till March, 2006 and thereafter also he has failed to make payment in terms of the document dated 6th June, 1999. 2. Defendant has taken a defence that defendant secured tenancy rights in respect of the suit premises from 1988 and the rent agreed was Rs.150/- per month. Motion was heard on the question of payment of compensation by the defendant during the pendency of the suit and for payment of arrears of compensation. So far as continuation of the possession of the suit premises with the tenant, there appears to be no difficulty and that the defendant can be permitted to occupy the suit premises by passing order of injunction restraining defendant from creating third party rights and / or parting with possession in regard to the suit premises. 3. In so far as question of payment of compensation @ Rs.2800/- per month, learned Counsel appearing on behalf of the defendant upon instructions from Mr. Anil Gupta, the constituted attorney of defendant stated that Court can pass an order calling upon the defendant to pay compensation @ Rs.2800/- per month from July, 2005 till September, 2010 and continue to deposit the same amount till disposal of the suit. : 3 : nms-1436-06=.sxw He submitted that this concession given by the defendant as regards payment of compensation @ Rs.2800/- per month is without prejudice to the rights and contention in this suit as well as suit filed by the defendant in the Small Causes Court, Bombay being RAD Suit No.673 of 2005. 4. Now that the amount of compensation payable by the defendant from July, 2005 is fixed at Rs.2800/- per month, question is as to what extent plaintiffs should be able to receive the same so far as amount from July, 2005 till September, 2010. In so far as compensation amount @ Rs.2800/- per month for the period July, 2005 till April, 2006, the amount would not be receivable by the plaintiff till the disposal of the suit. So far as the amount of compensation payable from May, 2006 till September, 2010, the plaintiff would be entitled to receive from the office Rs.1400/- per month for the aforesaid period. For the period October, 2010 onwards till further orders, defendant will have to deposit sum of Rs.2800/- per month and out of the said amount, plaintiff can be permitted to withdraw a sum of Rs.1400/- and balance amount will remain in the Court subject to accounts till realization of the suit. Keeping in view the aforesaid observations, motion is being disposed of by passing following order. : 4 : nms-1436-06=.sxw ORDER (i) Notice of Motion is made absolute in terms of prayer clause (a). (ii) So far as prayer clause (b) is concerned, amount of monthly compensation payable by the defendant from July, 2005 till further orders is fixed @ Rs.2800/- per month. (iii) Defendant shall deposit in this Court amount @ Rs.2800/- per month for the period July, 2005 till April, 2006 on or before 20th October, 2010. (iv) So far as period May, 2006 to September, 2010, defendant shall deposit in this Court a sum of Rs.2800/- per month and the amount so calculated shall be deposited on or before 16th December, 2010. For the month of October, 2010 onwards, defendant shall deposit in this Court a sum of Rs.2800/- per month on or before 10th October, 2010 and installment for the month of November, 2010 onwards shall be deposited on or before 10th of respective month. (v) Out of the amount, which will be deposited for the period May, 2006 to September 2010, 50% of the same can be withdrawn by the plaintiffs on an undertaking that such withdrawal shall be subject to accounts. Rest of the amount will remain in the Court and shall be invested in a fixed deposit initially for a period of 2 : 5 : nms-1436-06=.sxw years and continue to be renewed the same for like period till further orders. The amount which will be deposited by the defendant for the period July, 2005 till April, 2006 shall be invested in the fixed depsoit for a period of 2 years and shall continue to be renewed for like period till further orders. Out of the amount which will be deposited by the defendant for the month of October, 2010 onwards @ Rs.2800/- per month, plaintiffs would be entitled to withdraw Rs.1400/- as and when the sum of Rs.2800/- is deposited. Such withdrawal shall be on the undertaking that the amount would be subject to accounts and as and when the amount so collected after October, 2010 exceeds Rs.30,000/-. Amount which remains after such withdrawal shall be invested in a fixed deposit initially for a period of 2 years and continue to renew for like period till further orders. The original agreements (4 in numbers) tendered by learned Counsel for the plaintiffs as well as Shops and Establishment licences (2 in numbers) are returned to the Counsel for the plaintiffs. There shall be no order as to costs. (vi) Written statement is already filed. It is clarified that this order shall be read by the parties only for the purposes of this suit. Question whether the plaintiffs inducted the plaintiffs as a conductor or the stand of the defendant that defendant was : 6 : nms-1436-06=.sxw inducted as monthly tenant is left open. The observations in this motion shall not be considered by the learned Judge of Small Causes Court while deciding the declaratory suit filed by the defendant. So far as monthly compensation payable from the month of October, 2010, if there are any two defaults, plaintiffs are free to take out appropriate proceedings including proceedings for appointment of Court Receiver. (R.Y.GANOO, J.)