ca18430.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 18430 OF 2010 Central Bank of India & another .. APPLICANTS VERSUS Smt. Durgarani Peddy w/o Anjayya Peddi & another .. RESPONDENTS Mr. N.N. Kapadia and Mr. S.R. Deshpande, advocates for the applicants. Mr. S.V. Adwant, advocate for respondent nos. 1 and 2. ===== CORAM : R.M. BORDE, J. RESERVED ON : 10 th JUNE, 2011. PRONOUNCED ON : 21 st JUNE, 2011. PER COURT : 1 This application is presented by original defendants claiming stay to execution of decree passed by 3 rd Jt. Civil Judge, Sr.Dn., Aurangabad on 14-9-2010 in Special Civil Suit no. 344/2007. 2 Suit was presented by respondents / original plaintiffs claiming recovery of possession of tenanted premises as well as claiming recovery of amount of Rs. 13,61,300.64 p. towards compensation for use and occupation ca18430.10 2 of the tenanted premises by the defendants, after termination of tenancy. Suit premises consists of a building admeasuring 2831.46 sq. ft. situate at CIDCO, Aurangabad. The premises were let out to defendant – bank under registered lease deed dated 13-7-1994. At the time of issuance of notice of termination, it appears, rent was payable by the defendant at Rs. 17.55 per sq. ft. Plaintiffs issued notice of termination of tenancy and terminated the same since 31-12-2004. Plaintiffs claim compensation at the rate of 17.65.p per sq. ft. from 1-1-2005 till 6-12-2006 and at the rate of Rs. 30/- per sq. ft., thereafter which according to him, is the market rate of tenanted premises in the vicinity, from 7-12-2006 till the date of filing of the suit and further interest at the rate of 18% per annum. 3 Trial court, after considering the rival contentions, granted decree in favour of the plaintiffs thereby directing defendants / appellants herein to handover vacant and peaceful possession of the suit premises within two months from the date of passing of the decree. Defendants were directed to pay an amount of Rs. 13,61,300.64 p. alongwith future interest at the rate of 6% per annum from the date of the suit till realisation of the amount by plaintiffs. Trial court also directed separate enquiry for ascertaining future ca18430.10 3 mesne profit under Order XX Rule 12 of the Code of Civil Procedure. 4 Defendants have presented the instant appeal which has been admitted by this court on 11-01-2011. Defendants / appellants herein in view of direction issued by this court are stated to have deposited the amount as directed by the trial court in terms of paragraph no. 3 of the decree passed on 14-9-2010. Defendants are praying for stay of execution of decree in respect of delivery of possession of the tenanted premises. 5 Application is opposed by the plaintiffs contending that the defendants are illegally possessing tenanted premises after termination of tenancy. it is also in the alternative contended that the defendants shall be put to terms in respect of payment of rent at market rate. Plaintiffs have filed affidavit in reply and contended that the adjoining property situate nearby the tenanted premises is let out in favour of South Indian Bank since 15-7-2008 for a period of five years on monthly rent of Rs. 65/- per sq. ft. Plaintiff have also placed on record agreement in respect of creation of tenancy in favour of Axis Bank on 7-11-2008 for a period of five years on monthly rate of rent at Rs. 33/- per sq ft. for three years with rise of 15% per ca18430.10 4 three years thereafter. Axis Bank has also paid deposit amounting to Rs. 13,10,100/- for five years to the concerned landlord. Plaintiffs as such claim compensation for use and occupation of the premises by the defendant at the rate of Rs. 50/- per sq. ft. 6 Plaintiffs, in a suit presented by them, have claimed compensation at the rate of Rs. 30/- per sq. ft. on and after the date of termination of tenancy, considering the evidence in the form of copies of leave and license agreement placed on record by the plaintiffs concerning the adjoining property. So far as the property under dispute is concerned, the rent prescribed on the date of termination of tenancy i.e. 31-12-2004 was at Rs. 17.65/- per sq. ft. On consideration of rise for about seven years and on considering the evidence in the form of leave and license agreement placed on record by the plaintiffs in respect of adjoining property, I am of the opinion that the defendants / applicants herein shall be directed to pay monthly amount towards use and occupation of the tenanted premises at the rate of Rs.30/- per sq., ft. Enquiry for ascertaining mesne profit as directed by the trial court shall proceed and direction issued in that behalf need not be stayed. However, the order passed in respect of payment of ca18430.10 5 mesne profit shall be subject to final outcome of the instant appeal. It would be open for the plaintiffs to apply for review of the order for claiming enhanced amount of rent, if any, on the basis of determination of question in enquiry as directed by the trial court under Order XX Rule 12 of the Code of Civil Procedure. For the reason recorded above, I pass the following order : 1 There shall be stay to the execution of direction contained in paragraph no. 2 of the order passed by the 3 rd Jt. Civil Judge, Sr.Dn., Aurangabad on 14-9-2010 in Special Civil Suit no. 344/2007, on condition of deposit of monthly charges towards use and occupation of the premises by the defendants with the plaintiffs at the rate of Rs. 30/- per sq. ft. 2 Monthly amount shall be paid before 10 th day of each month. 3 Since defendants have deposited an amount as directed by trial court as per direction contained in paragraph no. 3 of the order, said direction need not be stayed. It would be open for the plaintiffs / respondents herein to pray for withdrawal of amount deposited by defendants in this court. ca18430.10 6 4 Direction in respect of enquiry into mesne profit under Order XX Rule 12 of the Code of Civil Procedure contained in paragraph no. 2 of the order is concerned, the enquiry may be proceeded with, however, final order shall be subject to decision of the instant appeal. 5 Amount payable from the month of September 2007 till June 2011 towards charges for use and occupation of the premises of the defendants shall be deposited in this court at the rate of Rs. 30/- per sq. ft., within period of six weeks from today. On deposit of amount as directed, liberty to the plaintiffs to pray for withdrawal of amount. 5 Civil application stands disposed of. ( R. M. BORDE ) JUDGE dyb