Order 1

Order Details: Order below exhibit
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXHIBIT NO.2
IN
MISCELLANEOUS APPEAL NO.168 OF 2019
IN
CASE NO.0014 & 0014A OF 2013
M/s. Hickson & Dadajee Private Limited, )
Shree Pant Bhavan, Sandurst Bridge, )
Mumbai – 400 007. )...Appellant.
V/s.
1. The Estate Officer, )
The New India Assurance Company Ltd., )
having its heard office at the New India )
Assurance Building, 87, Mahatma Gandhi Road, )
Fort, Mumbai – 400 001. )
2. The New India Assurance Company Limited, )
having its head office at the New India )
Assurance Building, 87, Mahatma Gandhi Road, )
Fort, Mumbai – 400 01. )...Respondents.
Appearances:
Learned Adv. Mr. Zubin Dalal for the appellant.
Learned Adv. Mr. V.Y. Sanglikar for respondent No.2.
CORAM : HIS HONOUR JUDGE
SHRI SANDIPKUMAR C. MORE
(C.R.No.04)
DATED : 20th November, 2019.
: ORAL ORDER :
The appellant under this application is claiming stay of impugned
order dated 07.11.2019 passed by respondent No.2 in the aforesaid
case, during the pendency of this appeal. Under the impugned order,
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the respondent No.1 has asked the present appellant to vacate the
premises in dispute and to pay damages at the rate of Rs.2,20,545/ per
month with effect from 01.04.2002 till the date of handing over of
possession, with 6% simple interest per annum.
2. Heard rival submissions. Also perused the documents on record.
3. On perusal of documents, it appears that the appellant is claiming
stay of impugned order during the pendency of this appeal mainly on
the grounds that the provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 (in short “PPE Act”) are not
applicable to present dispute and that the appellant was denied with an
opportunity to lead evidence on aspect of valuation. He mainly relied
upon the judgment of Dr. Suhas Pophale V/s. Oriental Insurance Co.
Ltd. & Anr., in view of which, it is evident that provisions of PPE Act
are not applicable in this matter. However, the judgment in Dr. Suhas
Pophale's case passed by the two Judge Bench of the Hon'ble Apex
Court, itself has been referred to larger Bench. Moreover, the Hon'ble
Bombay High Court in its order dated 04.12.2017 in Writ Petition
No.2810/2017 has also observed that unless the larger Bench of Hon'ble
Supreme Court decides the reference arising out of Dr. Suhas Pophale's
case, the said matter needs to be adjourned sine die with liberty to both
parties to apply. As against this, the advocate for respondent No.2 also
submitted that the Hon'ble Apex Court in petitions filed by LIC against
Vita Pvt. Ltd. & Another under Special Leave Petition No.35859/2014
has observed that its judgment of two Judge Bench in the case of
Dr. Suhas Pophale is contrary to the decision of the Constitution Bench
as per judgment reported in 1990(4) SCC 406 in the case of Ashoka
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Marketing V/s. Punjab National Bank and therefore, those matters
need to be heard by three Judge Bench.
4. A careful observation of all the aforesaid judgments relied by the
respective parties, clearly indicate that the question of applicability of
Dr. Suhas Pophole's judgment in the disputed matters is yet to be
decided. Further, even if it is presumed for a while that the said
judgment gets confirmed by the larger Bench of Hon'ble Apex Court,
then also such applicability to the present matter needs to be decided in
view of the facts and circumstances of this matter.
5. Normally, when appeal is filed challenging the order of Trial
Court, stay to the execution of such order is granted so that the purpose
of appeal should not be frustrated. However, the Appellate Court is
always at liberty to impose any reasonable condition while granting
such stay to safeguard the interest of contesting respondent. The
advocate for respondent No.2 candidly submitted before this Court that
he had no objection if the impugned order is stayed, but the appellant
must be asked for deposit of damages awarded by respondent No.1 in
the impugned order. On the contrary, the advocate for appellant
vehemently submitted that the appellant cannot be asked for deposit
such damages because he is regularly paying the rent amount of around
Rs.1000/ per month to the respondent No.2.
6. Admittedly, the appeal of appellant is admitted and therefore, in
normal course, stay to the execution of impugned order is to be
granted. However, as per the submission of advocate for respondent
No.2, such stay needs to be granted subject to deposit of damages as
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awarded by the respondent No.1. The advocate for appellant opposed
the said submission on the ground that the appellant was denied with
an opportunity to lead evidence on the aspect of valuation. However, on
perusal of order dated 14.10.2019 passed by the Hon'ble High Court in
Writ Petition No.10957/2019, it is evident that the appellant during the
trial of the aforesaid case, had in fact challenged the order of rejection
for allowing the appellant to lead evidence of valuer and the Hon'ble
High Court under the aforesaid order already dismissed the said Writ
Petition. Therefore, now I have to see whether the stay to the execution
of impugned order can be granted without any condition or with
condition.
7. The advocate for respondent No.2 heavily relied on the order of
Hon'ble Bombay High Court dated 30.10.2012 in Writ Petition
No.9210/2009, wherein he had asked for certain guidelines to be issued
in case the Appellate Authority grants stay to the impugned order of the
Estate Officer during the pendency of appeal. On careful observation of
the said order passed by his Lordship Hon'ble Shri S.C.
Dharmadhikar, it appears that the Hon'ble High Court has observed
that the Appellate Authority is at liberty to put conditions as it deems fit
while exercising power of granting stay during the pendency of appeal.
Here, I would like to reproduce certain parts of the order which are as
follows:
“To my mind, the words “and on such conditions as he
deems fit” would indicate that the power to grant stay is to be
exercised, not arbitrarily, but on case to case basis and bearing in
mind the controversy before the officer in the main appeal and the
nature of the relief that is claimed. Further, the power to stay the
enforcement of that order is to be exercised by keeping in mind
that the appeal may be directed against the orders under section 5
or section 5B or section 5C. The first of the order that is
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enumerated against which appeal is provided is under section 5.
That is eviction of unauthorised occupants. When an appeal is
directed against an order passed under section 5, then if the stay of
enforcement of such an order is sought, the appellate officer may
impose conditions which are fair, just and reasonable so as to
balance the rights of both sides and equities in a given case”.
It is further observed as follows:
“The condition imposed must be consistent with the object
of the Act and the purpose of evicting unauthorised occupants from
public premises, the provisions of which are salutary in nature and
are in public interest. Therefore, while protecting the occupation of
the occupant, the appellate officer may impose conditions on the
occupant of not creating any third party rights, inducting any
third party in possession and paying the amount which has been
charged from month to month as a condition for stay of
enforcement of the order in addition to any other condition he may
deem fit and proper in the peculiar facts of a case”.
8. Thus, on going through the aforesaid observations, it is evident
that the Hon'ble High Court has opined that a conditional order of stay
in the matters under PPE Act can also be passed, which are analogous
to the provisions of OrderXLI Rule5 of C.P.C. Further, the Hon'ble
High Court in the said order has also observed further as follows:
“In such circumstances, it is not as if the Code of Civil
Procedure being inapplicable or that the proceedings under the PPE
Act being summary in nature, that the appellate authority is not
guided by any principle or there is complete absence of guidelines.
The appellate authority can derive assistance from order XLI Rule
5 and analogous powers and guide itself when determining the
conditions. Ultimately, the enforcement of the order passed is to be
stayed and on such conditions as the appellate officer deems fit.
That itself is enough to hold that the power is not to be exercised
arbitrarily and capriciously but must be guided by such terms as
could be imposed in the given facts and circumstances. It is not a
power which would enable unauthorised occupants to continue in
possession without making any payment and equally those who
have been proceeded against under section 7 subsection (2). That,
the estate officer's order would be stayed unconditionally without
securing the amount or the difference thereof and determining the
adhoc or tentative sum as a precondition for stay of enforcement
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of the order passed under section 7 is an apprehension without any
basis. Therefore, section 7 itself has inbuilt and inherent guidelines
and equally, the other provisions and they together with
subsection (3) of section 9 must guide the appellate officer”.
9. Thus, with these observations, the Hon'ble High Court has made
it sufficiently clear that even if in the appeals under PPE Act, the
Appellate Authority can pass conditional stay order and can ask the
appellant to secure the interest of respondent during the pendency of
appeal.
10. The advocate for respondent No.2 vehemently argued that the
amount of damages as per the order of Estate Officer/respondent No.1
till date comes around Rs.4 Crores and therefore, while granting stay to
the execution of impugned order, the appellant should deposit the said
amount in this Court. Further, on perusal of the impugned order, it is
evident that the appellant is in occupation of luxurious premises
admeasuring around 2500 Sq. Ft. Not only this, but the said premises is
located in highly plush area of Mumbai i.e. Malbar Hill. The judicial
notice can be taken about prevailing market rent in the said area.
Therefore, I am of the opinion that if the appellant continues to stay in
the disputed premises, then he has to pay certain amount to balance the
interest of respondent No.2 during the pendency of this appeal. Though,
it would be very harsh upon appellant for making payment of such
damages around 4 Crores as observed by the respondent No.1/Estate
Officer, but to my opinion, the appellant can be asked for furnishing
bank guarantee for ¼th of the said damages during the pendency of this
appeal. Therefore, considering all the aforesaid aspects, I pass following
order.
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: ORDER :
The execution of impugned order dated 07.11.2019
passed by respondent No.1 is hereby stayed during the
pendency of this appeal, subject to furnishing of bank
guarantee of Rs.1 Crore of any nationalized bank by the
appellant, within the period of 2 months from this order.
(SANDIPKUMAR C. MORE)
1st Additional Principal Judge,
(C.R.No.4)
Date : 20.11.2019. City Civil Court, Gr. Mumbai
Dictated on : 20.11.2019.
Transcribed on : 20.11.2019.
Signed on : 20.11.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.11.2019, at 05.31 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S.C. More
Court Room No.4
Date of Pronouncement of Judgment/order 20.11.2019
Judgment/order signed by P.O. on 20.11.2019
Judgment/order uploaded on 20.11.2019
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