Order 2

Order Details: Order below exhibit
Pdf Text: :1: Order Below Exh.3 in Misc.Appeal168/2019
IN THE COURT OF CITY CIVIL COURT FOR GR.BOMBAY
AT BOMBAY
ORDER BELOW APPLICATION EXH.3
IN
MISC.APPEAL NO.168 OF 2019
The New India Assurance
Company Limited ... Applicant
IN THE MATTER BETWEEN
M/s.Hickson & Dadajee
Private Limited. ..Appellant
Versus
1. The Estate Officer
The New India Assurance Co.Ltd.
2. The New India Assurance Co.Ltd. ..Respondents
Ms.Radhika V. Warerkar, Learned advocate for appellant.
Shri V.Y.Sanglikar, Learned advocate for respondents.
CORAM : HER HONOUR THE PRINCIPAL JUDGE
URMILA S. JOSHI – PHALKE
DATE : 27th JANUARY 2022
ORAL ORDER
Present application is filed by Respondent No.2 for withdrawal of
the amount of Rs. 1 Crore deposited in this Court by the appellant
subject to outcome of the appeal on such terms as this Court deems fit.
2. As per contention of Respondent No.2, present appeal is filed
u/s. 9 of The Public premises (Eviction of Unauthorized Occupants) Act,
1971. The Appellant has challenged the order dt. 7.11.2009 passed by
the Estate Officer/Respondent No.1 by which the appellant is directed
to evict and vacate the appeal premises which is the subject matter of
the appeal. The appellant is further ordered to pay damages @ Rs.
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2,20,545/ per month from 1.4.2002 with simple interest @ 6% p.a.
thereon till possession is handed over to Respondent No.2.
3. It is further contention of Respondent No.2 that subject matter of
the above appeal are the premises bearing Flat No.A1 on the ground
floor, on Mayfair Garden Building of Respondent No.2 located at
Malbar Hill, Mumbai admeasuring about 2535 sq.ft. with a garage etc.
While granting stay to the execution of the order passed by the Estate
Officer, this Court has directed the appellant to furnish Bank Guarantee
of Rs.1 Cr. which was later on converted into deposit order.
Accordingly, the appellant has deposited Rs.1 Cr. in this Court.
4. As per contention of Respondent No.2, the appellant has not paid
any compensation amount for the unauthorized occupation of the
appeal premises which as observed by this Court are lavish located in
posh Malabar Hill area. Respondent No.2 is public undertaking and
cannot be deprived of its own premises without payment. The quantum
of damages comes to over Rs.4.5 Crores and therefore Respondent No.2
be allowed to withdraw the said amount subject to outcome of the
appeal.
5. Said application is strongly opposed by the appellant on the
ground that above appeal has been filed challenging the impugned
order passed by the Estate Officer. While granting stay, this Court has
directed to furnish bank guarantee of Rs.1 Cr. Subsequently the order
has been modified and this Court has permitted to deposit the said
amount before this Court. It is further contention of the appellant that
appellant has challenged not only the eviction order but the damages
also and appellant is having every chance of success in the present
appeal. If tomorrow appeal is allowed, then it will be difficult for the
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appellant to recover the said amount. Hence, Respondent No.2 is not
entitled for withdrawal of the said amount. It is further contention of
the appellant that Responent No.2 is not deprived of its own premises.
But the appellant besides depositing Rs.1 Cr. continued to pay quarterly
rent of Rs.3015/ regularly during pendency of the appeal which was
the contractual rent and hence application deserves to be rejected.
6. Heard Learned Advocate Mr. V. Y. Sanglikar for Respondent
No.2. He submitted that alleged suit premises is located at Malbar Hill
which is in very prime locality. The area which is in possession of
appellant is admeasuring 2535 sq. ft. The appellant is in unauthorized
occupation and therefore, the plea of the appellant that it is paying rent
is not sustainable. The appellant is in unauthorized occupation since
last 20 years. The appellant is not also proceeding with the appeal.
Since long the appeal is fixed for hearing. He invited my attention
towards Roznama of appeal. Roznama dt. 9.4.2021 shows that Notice
of Motion bearing No.383 of 2021 is dismissed and appeal is adjourned
to 7.6.2021 for further hearing. Thereafter from 7.6.2021 till today the
appellant has sought dates for one or other reason. Thus Respondent
No.2 which is owner of the premises is deprived from taking possession
of the said premises. The amount which allegedly the appellant is
paying is very meager i.e.Rs.3015 for the area which is more than 2000
sq.ft. Respondent No.2 will produce the amount if tomorrow the appeal
is decided against it and therefore, said amount be paid to Respondent
No.2 subject to outcome of the appeal.
7. Whereas Learned Advocate Ms. Radhika Warerkar for the
appellant submitted that Respondent No.2 is not entitled to withdraw
the amount. No liberty is granted to Respondent No.2 to withdraw the
said amount. Order dt.6.1.2020 shows that the appellant is permitted to
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deposit the amount in the Court. On depositing the amount by the
appellant the Office shall invest the amount in any Nationalized Bank
initially for a fix period of 6 months and continue to renew the same for
further period of 6 months till further orders.
8. Heard both sides. Perused the record.
9. The appeal is filed against the order passed by the Estate Officer.
While passing order, Estate Officer has ordered to vacate the premises
and also ordered to pay the damages to Respondent No.2 at the rate of
Rs.2,20,545/ from 1.4.2002 till date of handing over the possession
with 6% Simple interest p.a.thereon. While granting stay, this Court has
imposed the condition that appellant shall furnish the security of Rs. 1
Cr. before this Court. Thereafter the appellant has also filed Precipe
seeking modification in the order and this Court has permitted to
deposit the amount of Rs.1 Cr in the Court within stipulated time
mentioned in the earlier order. Thereafter the matter was adjourned for
filing Record and Proceedings. Since 5.3.2020 the appeal is fixed for
hearing. From 5.3.2020 to 14.9.2020 the matter was adjourned due to
lockdown due to COVID19 Pandemic. On 7.10.2020 both the sides
were absent hence matter was adjourned. Thereafter the appellant has
filed Notice of Motion on the contention that in view of judgment of the
Hon’ble Apex Court in Suhas Pophale’s case the appeal be kept in
abeyance until reference made to the Hon’ble Supreme Court to the
larger bench is heard and decided. It is further payed in the Notice of
Motion that the appellant be permitted to carry out necessary repairs to
the appeal premises. After hearing both the sides detailed order is
passed by the then Principal Judge and Notice of Motion is dismissed.
Thereafter the appeal was fixed for arguments. It appears from
Roznama that Notice of Motion was dismissed on 9.4.2021 and
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thereafter for one or other reasons the appellant has sought
adjournments. On 17.12.2021 specific directions are given by this Court
that the appellant shall proceed on the next date but on 18.1.2022 none
present for the appellant. Learned Adv. Mr.V.Y.Sangalikar pressed the
application filed vide Exh.3. In reply itself the appellant has submitted
that appellant is paying Rs.3015/ towards the quarterly rent of the said
premises. Admittedly, the premises admeasuring about 2535 sq.ft is in
possession of the appellant in area like Malabar Hill. Since 2002 the
appellant is declared as unauthorized occupant. Merits of the appeal
will be decided a the time of final adjudication. Though eviction order is
passed in the present case by the Estate Officer on 7.11.2009 but till
today, neither the appeal is progressed nor any amount is paid to
Respondent No.2 towards compensation. The appeal will take its own
time for its final decision. Admittedly, Respondent No.2 is deprived
from taking the fruits of the order passed by the Estate Officer. In such
circumstances, Respondent No.2 can be permitted to withdraw the
amount by imposing some conditions. Hence, I proceed to pass the
following order:
ORDER
1. Application Exh.3 is allowed.
2. Respondent No.2 is permitted to withdraw the amount of
Rs.1 Crore (Rs.One Crore Only) subject to outcome of the appeal.
3. Respondent No.2 shall deposit the said amount in the Court as
and when required and directed by this Court.
4. Respondent No.2 shall deposit the amount immediately after the
disposal of the appeal if appeal is decided in favour of the
appellant.
Date: 27.01.2022 (Urmila S. Joshi Phalke)
Principal Judge,
City Civil & Sessions Court Gr. Bombay
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Dictated on : 27.1.2022
Transcribed on : 27.1.2022
Sign on : 27.1.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S.Parab
Upload date and time: 28.1.2022 (At 2.02 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
SMT.URMILA S.JOSHIPHALKE
(C.R.No.19)
Date of Pronouncement of Order 27.1.2022
Order signed by P.O. on 27.1.2022
Order uploaded on 28.1.2022
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