1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5965 of 2008 State Trading Corporation of India Ltd. .. Petitioner versus Mrs.Godavaridevi Agarwal .. Respondent ... Mr.N.D. Jaywant with R.P. Gurjar for the petitioner. Mr.S.M. Kazi for respondent. CORAM : A.M.KHANWILKAR, J DATED : 20th August 2008 P.C.: 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr. Kazi waives notice for the respondent. As short question is involved, petition is taken up for final disposal forthwith by consent. 3. This writ petition under Article 227 takes 2 exception to the judgement and order passed by the Appellate Bench of the Small Causes Court dated 18th June 2008 below Exhibit-11 in Appeal no.352 of 2008. The operative order reads thus: Application is allowed. Stay to the decree to the extent of possession is granted on condition that Appellant deposits an amount @ Rs.425/- per sq.ft for area of the suit premises i.e.1000 sq.ft from the date of decree till to the end of June 2008. Said arrears are to be deposited on or before 21.08.2008 and further Appellant to deposit per month an amount at that rate on or before 10th of next month of amount due: If amount so deposited, it be paid to the Respondent on her giving undertaking to repay the amount as directed by the Court and amount so withdrawn or amount so paid is to be adjusted at the final end and due amount is to be worked out conveniently it can be adjusted in future dues and for balance due charge to the extent of said amount stands created on the suit property till that amount is repaid. 4. The said directions have been issued by the appellate court during the pendency of the appeal essentially placing reliance on the decisions of the Apex Court in (1) Marshal Sons & Co.(I) Ltd. Vs. Sahi Oretrans (P) Ltd reported in (1999) 2 SCC 325, (2)Atmaram Properties (P) Ltd. Vs. Federal Motors(P) Ltd reported in (2005) 1 SCC 705 and (3)Anderson Wright and Co. Vs. Amarnath Roy 3 reported in AIR 2005(1) Supreme Court 2457. 5. The Court below has rightly applied the settled position that even though the appellate court would admit the appeal against the decree of eviction passed against the tenant, is free to impose on condition on the tenants amongst others to pay fair market rent in respect of suit premises till the pendency of the appeal. In the present case, the landlord asserted that he has given on leave and licence property situated in the same building at Rs.425/- per sq.ft. per month. That is the yard stick applied by the lower court to determine compensation in respect of the suit premises which admeasure 1000 sq.ft. to Rs.4,25,000/- per month. In other words, there was tangible material before the court to specify the amount of compensation to be paid by the petitioner tenant. It is not a case where the petitioner tenant has argued that he is not in a position to pay such high rent. The ability of the tenant to pay the present market rate compensation amount specified in the impugned decision is not in issue at all. Thus understood, no fault can be found with the view taken by the court below in fixing the compensation amount in respect of the suit premises 4 at the rate of Rs.4,25,000/- per month during the pendency of the appeal. 6. To get over this position, counsel for the petitioner would argue that the decision relied upon by the appellate court to adopt the course recorded in the impugned order were not applicable to the fact situation of the present case. According to the petitioner in the present case, the decree passed by the trial court provided that mesne profits be computed in due course. That by itself cannot be the basis to distinguish the three decisions referred to by of the appellate court. The fact that mesne profits would be determined at a later stage cannot be the basis to take the view that the appellate court while admitting the appeal and/or entertaining the appeal is not entitled to fix the compensation amount at prevailing market rate as such. As no other contention has been raised by the counsel for the petitioner with regard to the merits of the amount determined by the appellate court in the impugned judgement, the said approach of the appellate court will have to be upheld. 7. The only apprehension of the petitioner that 5 needs to be addressed by this court is that there is no guarantee that the respondent after withdrawing the amount deposited by the court would repay the amount and there would be no means for the petitioner to recover such substantial amount in the event the appeal preferred by the petitioner was to succeed. Indeed, if the petitioner’s appeal was to succeed, the petitioner would continue to be tenant in respect of the suit premises on the same terms agreed upon between the parties and would not be liable to pay compensation at the prevailing market rate. In that case, the petitioner would not only be entitled for refund of the entire amount paid in terms of the impugned order but also to be compensated for the loss of interest on such amount availed by the respondent landlord. 8. In response to this apprehension, the counsel for the respondent, on instructions states that the respondent before withdrawing the amount deposited by the petitioner shall not only give undertaking but also furnish sufficient solvent surety and/or bank guarantee as would be acceptable to the satisfaction of the appellate court. Besides, the respondent would repay the amount after the final decision of the appeal if so directed by the court along with interest which shall not be 6 less than 10% per annum or such amount as would be ordered by the court after hearing both the sides. The assurance given by the respondent on the above terms is accepted. 9. In the circumstances, the operative direction issued by the appellate court referred to above will stand modified to the following effect. The respondent will be free to withdraw the amount deposited by the petitioner giving undertaking to repay the amount so withdrawn as also to repay the amount deposited by the petitioner tenant along with interest to be quantified by the appellate court at the end of the hearing, if so ordered. Besides giving undertaking the respondent shall furnish solvent surety and/or bank guarantee to the satisfaction of the appellate court commensurate with the amount to be withdrawn by him. Rest of the directions given by the appellate court in the impugned order to remain as it is subject to above. 10. At this stage, counsel for the petitioner submits that the petitioner may require some time to comply with the directions after following necessary procedural formalities. In the circumstances, time to deposit ordered by the appellate court shall now 7 stand modified to 6th October 2008. 11. In addition, the appellate court shall expedite the hearing of the appeal to be finally disposed of as "High Court Expedited Case" preferably by end of June 2009. 12. Needless to observe that opinion recorded in the impugned order or for that matter, the present decision is only to examine the limited controversy regarding the nature of condition to be imposed during the pendency of the appeal. In other words, the pending appeal be decided on its own merits. All questions are left open. (A.M.KHANWILKAR, J)