Order 4

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
[BANDRA BRANCH]
(Appellate Bench)
(CNR NO.MHSCA30005052023)
ORDER BELOW EXH 6
IN
2A APPEAL NO. 19 OF 2023
IN
RAE SUIT NO. 438 OF 2017
Mr. Dilip Jasaramji Mali ...Appellant/
(Original Defendant)
V/s.
Mr. Ramesh Ganesh Saxena …Respondent/
(Original Plaintiff )
Lalit V. Jain : Advocate for the Appellant.
Shweta R. Agrawal : Advocate for the Respondent.
Coram : Shri Vilas P. Kadam
Additional Chief Judge,
&
A. H. Baig, Judge,
Court Room No. 41,
Date : 09.08.2023
ORDER: (Per A. H. Baig, Judge)
1. This is an application filed by appellant/original defendant
for grant of stay to the execution of Judgment and decree passed by the
learned trial court on 20.04.2023 in RAE Suit No. 438 of 2017.
2. It is contended in the application that the present appeal is
preferred against the judgment and order dated 20.04.2023 passed in
RAE Suit No. 438 of 2017. The Appellant has good case on merits. The
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suit premises is the only shelter to the appellant to reside alongwith his
family. Great harm and prejudice will be caused to appellant, if
application is not allowed. If meantime, decree for possession granted
by the trial court, is executed against him, the appellant will suffer
grave harm and loss. Hence, it is prayed that the application be allowed
and execution of decree passed in RAE Suit No. 438 of 2017 dated
20.04.2023 be stayed till the final disposal of the present appeal.
3. Respondent has strongly resisted the application by filing
reply and denied all the contentions made in the application. It is
contended that the appellant has not made out any case for grant of
stay. It is further contended that if the stay is granted, appellant may
be ordered and directed to pay reasonable compensation of Rs.45,000/
per month to respondent for wrongful use and occupation of the suit
premises from the date of decree till the handing over possession of suit
premises. Finally, it is prayed that the application be rejected.
4. The appellant has filed rejoinder to the reply filed by the
respondent and denied all the contentions made in the reply.
5. After considering the application, reply and rejoinder,
following points arise for our determination and we have recorded our
findings with reasons thereto as under :
POINTS FINDINGS
1. Whether the Judgment and decree passed in
RAE Suit No. 438 of 2017 dated 20.04.2023
needs to be stayed? If yes, on what
conditions ?
In the affirmative.
As per conditions
mentioned in the
final order.
2 What Order ? As per final order
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R E A S O N S
As to Point Nos. 1 and 2
6. We have heard both learned Advocates for the parties at
length and gone through the documents filed by both the parties.
7. Admittedly, as per Judgment passed by the learned trial
court dated 20.04.2023, suit has been partly decreed and the
appellant/defendant is directed to hand over vacant and peaceful
possession of the suit premises to the respondent/plaintiff. Thus,
appellant has challenged the said Judgment and decree by way of
present appeal. If during the pendency of the appeal, decree is
executed, the very purpose of filing the appeal would be frustrated. In
view of observations made by the Hon'ble Supreme Court in Atmaram
Properties (P) Ltd. V/s.Federal Motors (P) Ltd reported in (2005) 1
Supreme Court Cases 705, dispossession during the pendency of the
appeal is generally considered as substantial loss to appellant. Hence, in
our considered opinion, the Judgment and decree for possession needs
to be stayed.
8. At the same time, we note here that in view of observation
made in Atmaram Properties case as mentioned supra, reasonable
amount needs to be granted for the use and occupation of the suit
premises and to compensate the respondent(decree holder) for the loss
occasioned by delay in execution of decree by grant of stay order, in the
event of appeal being dismissed.
9. In the case at hand, the appellant has filed Valuation report
of Sanjay E. Joshi, Registered valuer, in respect of the suit premises .
As per his Valuation report, he has shown the total valuation of the
property as Rs. 42,00,000/ and opined that fair market rent would be
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only Rs. 8,750/ per month. However, it appears that the valuation as
well as fair monthly rent is shown at very lower side. It is calculated on
the basis of ready reckoner. He has given depreciation of 10 % merely
because there is no lift facility in the building. The suit building is only
two storied building. Hence, it is not expected from the landlord to
install lift in the suit premises.
10. Admittedly, the premises is located at Jayprakash Nagar,
Goregaon (E). The valuer of the appellant has admitted in his report
that the said premises is situated within 5 to 7 minutes walking distance
from Goregaon railway station. It is on the western railway line. The
premises is in a residential cum commercial area. Such area is well
served with all basic amenities and infrastructures is well grown. All
other amenities such as school, market city bus are readily available.
11. The total area of the suit premises is 600 sq.ft. The said
building is admittedly R.C.C building. Fair monthly rent of the suit
premises shown by the valuer is only Rs. 8,750/ per month. The report
is not based on other instances of adjoining locality. Moreover, the
appellant's valuer has shown fair market rate at very lower side inspite
of prime location, area and all other amenities. Hence, we are not
inclined to accept the said report filed appellant's valuer.
12. As against this, respondent has filed the Valuation report of
T.P. Katekar, Government registered approved Valuer in respect of the
suit premises. As per the said valuation report, the fair market rental
value for the suit premises is Rs.45,000/ per month. He has calculated
the fair market rate on the basis of quotes of sale advertisement. On the
basis of same, he opined that valuation of the suit flat comes to Rs.
1,50,00,000/. He has considered annual rate of return @ 3.50 % on
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total valuation, which comes to Rs. 5,25,000/ and accordingly, opined
that fair market rent should be Rs. 45,000/ per month.
13. The respondent's valuer in his Valuation report has taken
into consideration the sale advertisement, which cannot be the basis for
determining the value of the property. Moreover, the fair market rate
shown by him appears to be at higher side. As per settled principles of
law, amount of compensation should be reasonable and fair and it
should not be excessive and exorbitant
14. The respondent has also annexed the order passed by the
Hon'ble High Court in respect of premises, situated on the first floor of
the suit building. In that order, the Hon'ble Bombay High Court has
granted Rs. 25,000/ per month as an amount of compensation.
15. The respondent has also filed three instances of leave and
licence agreements. One of the instances is in respect of residential
area in the same vicinity of Goregaon (East), where licence fee appears
to be approximately Rs. 30000/ for 650 sq.ft. built up area. In that
case, the premises appears to have been given @ Rs. 46.15 per sq.ft.per
month. If we calculate the rent at that rate, the monthly rental for the
suit premises comes to Rs. 27,690/
16. The second instance is in respect of shop premises
admeasuring 200 sq.ft. and the licence fee of the same appears to be Rs.
32,000/ per month. The said instance is in respect of the shop
premises. The suit premises is a residential premises. So the said
instance cannot be considered.
17. The third instance of leave and licence is in respect of
residential premises in the same vicinity of Goregaon (E), wherein the
licence fee appears to be Rs. 40,000/ for 900 sq.ft. . If we consider the
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said instance, then we can say that letting rate of rent in that area
appears to be @ Rs. 44.44 per sq.ft. In the present case, the area of
the suit premises is 600 sq.ft. If we calculate the rental value of the suit
property at that rate, it will come to Rs. 26,666/ per month.
18. The Hon'ble High Court has granted Rs.25,000/
compensation per month for first floor premises of the same building.
Thus, in our considered opinion, considering the exact location, area,
user and other surrounding circumstances, we are of the considered
opinion that an amount of Rs.25,000/ would be just, sufficient and
proper as compensation, while granting stay to the impugned Judgment
and decree. The order of compensation is required to be passed from
the date of decree while granting stay to the execution of Judgment and
decree. Accordingly, we answer point No.1 in the 'affirmative' and in
answer to point No.2, we proceed to pass following order.
O R D E R
1. The application is allowed.
2. The execution of Judgment and decree passed by
the learned trial court in RAE Suit No. 438 of 2017
dated 20.04.2023 is hereby stayed till the final
decision of the appeal on following conditions:
(i) Appellant shall deposit interim compensation
@ Rs 25,000/(Rs. Twenty Five Thousand only)
per month towards use and occupation of the suit
premises from 20.04.2023 to August, 2023 in 3
equal installments, within the total period of three
months from the date of this order.
(ii) Appellant shall continue to deposit interim
monthly compensation @ Rs.25,000/from
September, 2023 onwards till the disposal of the
present appeal, on or before 10th day of every
month.
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(iii) Additional Registrar of this court is hereby
directed to invest the amount of compensation as
and when deposited by the appellant in fixed
Deposit for a term of at least one year in any
Nationalized Bank immediately on very next
working day as per rules.
(iv) If appellant has failed to deposit
compensation as per clause (i) and (ii) above, the
order of stay will be vacated automatically without
reference to this court.
I agree,
( Vilas P. Kadam ) ( A.H. Baig )
Additional Chief Judge, Judge
C. R. No. 41 C. R. No. 41
Court of Small Causes,(B.B) Court of Small Causes,(B.B)
09.08.2023 09.08.2023
Order dictated on : 09.08.2023
Order transcribed on : 09.08.2023
Order checked & signed on : 09.08.2023
/home/steno39/Desktop/CR41/AUGUST2023/ORDER/EXH62A APPEAL 192023 STAY APPLICATION .odt
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