IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION NO. 112 OF 2009 IN FIRST APPEAL NO. 114 OF 2009 GANESH BENZOPLAST LTD THROUGH TERMINAL MANAGER MANOJ CHELLAPAN V. ... Applicant Versus BOARD OF TRUSTEES OF MORMUGAO PORT TRUST ... Respondent Mr.G. L. Rawal, Senior Advocate with Mr. S. Narvekar, Advocate for the appellant. Mr. V. B. Nadkarni, Senior Advocate with Mr.Y.V. Nadkarni,Advocate for the Caveator (respondent). Coram:- B. P. DHARMADHIKARI & U. D. SALVI, JJ. Date:- 24th June, 2009 P.C. Parties are heard. The appellant/ applicant have pointed out that though the dispute was going on between the parties, they were allowed to operate till 03.02.2009 and an interim injunction given by the Civil Court in their favour was in force. It is admitted position that the temporary injunction application was disposed of on 10.10.2008 and in spite of that, the applicant continued to operate till 03.02.2009. 2. In the circumstances, the learned Counsel for the appellant has stated that the work force of the appellant about 100 in number, is sitting idle and as the infrastructure is not being used, the appellant/ applicant is being put to further loss. He has pointed out that there are some genuine issues, which require to be considered in the first appeal. 3. The learned Counsel for the respondent has filed reply affidavit and contended that the amounts in excess of Rs.8 Crores are due and recoverable by it from the applicant and till those amounts are not paid, no interim orders can be passed. 4. Both the learned Senior Advocates have invited our attention to the calculations filed on record and also to the agreements between the parties. There is dispute between the parties as to the 5 % increase in annual rent because according to the respondent, the said increase is compoundable annually while according to the applicant, it is compoundable every five years. The appellant/ applicant has produced before this Court a communication dated 12.01.2009 in which the amount due and payable till November 2008, has been shown and payable amount demanded is 3,93,46,851/-. We are not going into the correctness or otherwise of these aspects. The respondent has placed their calculations on affidavit before us. We find from the calculations of the respondent that apart from lease rent, the charges on account of booster station and way leave charges have also been claimed and the amounts paid by the applicant, have been appropriated against it. The interest also has been calculated and as on 12.7.2006, the principal amount shown due is 3,77,09,879/- with interest amount of Rs.72,05,046/- In subsequent calculation for the period from 13.07.2006 to 31.05.2009 the amount claimed as principal is Rs.2,77,72,597/- with interest amount of Rs.1,15,30,243/-. 5. Thus, we find that as per the respondent, the total principal amount payable is about 6,54,00,000/-. However, at the same time, the applicant has made grievance that after they raised initial construction by spending an amount about Rs.23 Crores, on account of the dispute in relation to 8,800 square meters of land for about two years, they were not in a position to do anything. The respondent is disputing this contention. The contention and the various question arising from it, need to be considered while hearing the appeal on merits. 6. In this circumstances, by way of an interim order, we direct the appellant/ applicant to deposit an amount of Rs.5 Crores in two equal instalments with the respondent directly towards their claims without prejudice to the contentions of either parties. The first such instalment shall be paid by 24.07.2009 and the second such instalment shall be paid by 24.08.2009. The applicant/appellant shall file an undertaking in this Court within 7 days from today accepting to deposit the instalment mentioning therein the name of their Chief Executive Officer/ C.E.O. so that in case of any violation of undertaking, an appropriate action can be taken against the said person. We permit the applicant/ appellant to resume their operation after such an undertaking is filed with the Registry of this Court with an advance copy thereof with the respondents. If the undertaking is not filed or if any of the instalments as mentioned above, are not paid within the time stipulated above, the respondent shall be free to stop the work resumed by the appellant/ applicant. It is also made clear that the time period specified above, shall not be extended in future. 7. It is made clear by way of abundant precaution that this Court has permitted operation to be resumed primarily on account of the fact that though the dispute has arisen between the parties some time in the year 2000, till 03.02.2009, the appellant/ applicant was carrying out their activities except for intervening period of two years. 8. The charges on account of current user are also in dispute between the parties. According to the respondent, it is Rs.97 Lacs while according to the appellant/ applicant, in present circumstances, it cannot be more than Rs.43 Lacs and in any case after compounding the permissible 5 % increase every five years, the learned Counsel states that it cannot be worked out to more than 50 Lacs roughly. 9. We, therefore, direct the applicant/ appellant to provisionally deposit and continue to deposit an amount of Rs.60 Lacs every year during the pendency of the present appeal. The amount of Rs.60 Lacs for this year shall be deposited on or before 31.12.2009 directly with the respondent. The amount for the next year and thereafter, shall be deposited with the respondent in terms of the agreement between the parties. If the amount towards current occupation are not deposited as per this order, the respondent is given liberty to stop the work and operation of the appellant/ applicant. It is brought to our notice that the proceedings for eviction under the Public Premises Eviction Act initiated by the respondent, are going on before the competent authority. The said proceedings to proceed further, but the final order passed against the present applicant/ appellant,if any, shall not be given effect until further orders of this Court. 10. We have not applied our mind to the merits of the controversy or claims made by the parties and all the issues are left open for consideration at an appropriate stage. The application is, accordingly, disposed of. B. P. DHARMADHIKARI, J. U. D. SALVI, J. SMA