1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.79 OF 2007 IN WRIT PETITION NO.4886 OF 2005 Saroj Lata D.Jain. ..Applicant. V/s. Madhav Prasad Morarka. ..Respondent. Mr.K.Y.Mandlik i/b. M/s.Hooseini Doctor & Co. for applicant. Mr.K.K.V.Kurup for respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 5, 2009. DATE : FEBRUARY 5, 2009. DATE : FEBRUARY 5, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. According to the landlady, the Respondent/tenant has failed to comply with the direction given in terms of the Order dated 22nd September, 2006. In that, the tenant has failed to pay all the arrears at the agreed rate for the period from November, 1985. According to the landlady, the tenant had agreed to pay sum of Rs.900/- towards monthly compensation during the licence period and after the licence period expired at the rate of Rs.1200/- per month and thereafter at the rate of 2 Rs.1,500/- per month. This position is in fact conceded in the evidence of the tenant recorded before the lower Court where he has stated in the following words: "The first compensation for 11 months was paid for Rs.900/- p.m. After the expiry of period of agreement at Ex.10, I paid monthly compensation at Rs.1200/-p.m. Thereafter I paid the compensation at Rs.1500/-p.m. At the time of paying compensation at Rs.1200 p. m. I did not write any letter to Jagdish Jain or to the deft. that I was the tenant, hence I was not liable to pay the compensation at the enhanced rate. Even I did not address any letter at the time of paying the compensation at Rs.1500/- p.m. It is not correct to say that, the deft. did not let out the suit premises to me." After this evidence there is hardly any doubt that the liability of the tenant to pay monthly compensation after expiry of licence period was at enhanced amount initially at Rs.1,200/-per month and thereafter at Rs.1,500/- per month with effect from 1st November, 1985. 3. Counsel for the tenant has relied on the evidence of tenant at page 110 where the tenant has denied the suggestion put to him. That does not take the matter any further. The fact remains that the tenant has conceded in his evidence that the monthly compensation during the licence period was Rs.900/- 3 i.e. between 1st January, 1983 to 30th June, 1985 and thereafter at increased rate of Rs.1200/- per month from 1st July, 1985 onwards which was paid at that rate till 31st October, 1985 and he started paying further increased monthly compensation at the rate of Rs.1500/- with effect from 1st November, 1985. Thus understood, tenant is liable to pay monthly compensation in respect of the suit premises at the rate of Rs.1,500/- per month. However, inspite of the direction contained in the order dated 22nd September, 2006, the tenant has deposited further sum of Rs.67,762/- on the assumption that the agreed monthly compensation in respect of the suit premises was only Rs.900/-. That assumption for the reasons recorded herein before is misplaced and contrary to his own evidence before the lower Court. 4. Going by the total deposit made by the tenant sofar, as is recorded in the Exh.A on page 227 of the application, it is noticed that the total amount deposited by the tenant will work out to Rs.2,81,700/-. Whereas on the basis of agreed compensation at the rate of Rs.1,500/- per month with effect from 1st November, 1985, the total liability of the tenant accrued till 31st December, 2008 works out to Rs.4,65,300/- as per the statement produced by 4 the Counsel for the landlady. On giving adjustment of Rs.2,81,700/- already paid by the tenant, he is liable to pay balance sum of Rs.1,83,600/- towards monthly compensation. It is only when the Respondent tenant deposits that amount the Respondent would be entitled to get protection given by this Court by way of interim order. Indeed, the Respondent/tenant has not deposited that amount within time given by this Court in terms of the order dated 22nd September, 2006. But that was on the erroneous assumption by depositing lesser amount. Even if that explanation is accepted at this stage, the tenant is liable to make good the balance outstanding amount of Rs.1,83,600/-. Only if the tenant were to deposit that amount within 8 weeks from today, the protection given to the Respondent/tenant in terms of the order passed by this Court will enure till disposal of the Writ Petition. Besides the outstanding dues as quantified upto 31st December, 2008 as indicated above, the tenant shall be liable to pay future monthly compensation at the rate of Rs.1,500/- per month in future on or before 5th of every English calender month. 5. In the circumstances, this Application is disposed of with direction to the Respondent to deposit Rs.1,84,100/-(Rs.1,83,600/- towards 5 outstanding till 31st December, 2008 and Rs.1,500/- for the month of January, 2009). This amount be deposited within 8 weeks from today, failing which it will be open to the landlord to take out appropriate proceeding, as may be advised. 6. Counsel for the Respondent/tenant submits that he has already paid outgoings directly to the society. Whether the respondent tenant is entitled for adjustment of that amount is a matter, which will be considered at the hearing of the Petition. 7. If the amount is deposited within time, it will be open to the Applicant/landlady to withdraw the said amount on furnishing solvent surety for commensurate amount. In case any other amount is deposited by the Respondent in this Court, the same may be handed over to the Applicant/landlady on furnishing solvent surety. . Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)