Order 1

Order Details: Order on Exhibit
Pdf Text: CNR No. MHSCA30006662024
IN THE COURT OF SMALL CAUSES AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
Exh. 11
IN
A1 Appeal No. 50 of 2024
IN
RAE Suit No. 77/181 of 2008
Smt. Prema Ramsanehi Nirmal (since deceased)
1(a) Ms. Geeta Ramsanehi Nirmal & ors. : Appellants
(Org. Defendants)
VERSUS
Dallas D’silva & anr. : Respondents
(Orig. plaintiffs)
Appearance :
A.N. Nasikwala and M.N. Nasikwala, learned Advocate for the
Appellants
Eventa A. Gonsalves, learned Advocate for the Respondents
Coram : A.S. Khadse
Additional Chief Judge
And
D.R. Mali
Judge, Court Room No. 31
Date : 28.11.2024
ORDER : (Per A.S. Khadse, Additional Chief Judge)
By filing this application appellants have prayed for
staying the execution of the judgment and decree dated 20.02.2024
in RAE Suit No. 77/181 of 2008 passed by learned trial court till final
disposal of this appeal.
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2. Admittedly, the said original suit came to be decreed by
learned trial court as per judgment and decree dated 20.02.2024 and
against it, appellants/defendants have preferred this appeal.
3. According to appellants, the learned trial court has
wrongly decreed said original suit for eviction, on the grounds
mentioned in the plaint for recovery of possession of suit premises
and other reliefs without considering factual and legal aspect. They
have good chance to succeed in appeal. Thus, if the said decree is
executed, this appeal will become infructuous. The same may cause
prejudice, hardship and difficulty to them. On the other hand, if this
application is allowed, no prejudice will be caused to respondents.
Therefore, they have prayed for allowing this application.
4. Respondents have strongly opposed said application by
filing their reply (Exh-12) for the detail reasons mentioned therein.
In it, they have stated that if this application is allowed, the
appellants be directed to deposit the monthly compensation in the
court as per market rate prevailing in the area around the suit
premises and they be permitted to withdraw the said amount as and
when deposited in the court by appellants. They have further stated
that the appellants be directed to deposit amount of Rs. 29,000/-
p.m. for the illegal user of the suit premises from the date of decree
dated 22.02.2024 until the handing over possession of suit premises.
5. On the basis of above rival submissions of both the
parties, following points arises for our consideration. We have given
our findings against each of them for the reasons stated in
subsequent paragraphs :
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Sr.
No. POINTS FINDINGS
1. Does appellants have made out a
case for staying the execution of
impugned judgment and decree as
alleged ?
In the affirmative
2. If yes, what would be the
compensation and for what period ? Accordingly
3. What order? This application is
allowed as per final
order.
R E A S O N S
6. Heard learned advocates for both the sides at length.
They have once again reiterated the grounds in the said application,
reply and rejoinder respectively, while advancing their oral argument
before this court. Hence, to avoid repetition the same are not re-
produced over here once again.
7. The Learned advocate for appellants has relied upon
following case laws filed along with list (Exh.15) in support of his
argument -
i. Marjorie Passanah and anr. Vs Mumtaz Iqbal Shaikh [2009(1)
Mh.L.J. 972]. In the said case it is held that -
“So as to examine the issue of 'reasonableness' the
Court may consider few factors, such as, - (1) what
percentage of the market value in terms of license
fee, the premises in question can fetch could be
termed as 'reasonable' (2) would this percentage be
different in respect of residential premises vis-à-vis
commercial premises, (3) which of the parties would
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be liable to pay the property taxes and other
taxes/cess/charges, (this can go to more than 50% of
the compensation for commercial premises in
Mumbai) (4) whether the amount can be work out
on the basis of rateable value of the suit premises or
number of times of the statutory rent or any other
method of valuation (5) how is the amount to be
adjusted in case of inquiry under Order XX, Rule 12
of the Civil Procedure Code relating to mesne profits
(6) when can the amount awarded said to be
unreasonable or oppressive or resulting in manifest
injustice. (7) whether any report from an expert is
necessary at that stage (8) would this figure of
'reasonable' compensation be different in case of
occupants who are trespassers or licensees who have
lost protection of the rent control legislation or
tenants holding over, etc.”
ii. Chandrakant Dhanu and anr. Vs Sharmila Kapur and ors.
[2009(2) Mh.L.J. 243]. In the said case it is held that -
“Burden is on the landlord to prove his claim of fair
and reasonable compensation by putting the material
on record including expert opinion and other such
instances etc.”
The observations in both the said case laws is not disputed by
the respondents. Hence, those case laws are guiding principles for
determining reasonable figure of compensation. In the light of the
same, here we take an opportunity to discuss the above stated points
one by one.
As to Point No. 1 :
8. So far as staying the said decree is concerned, appellants
have relied upon several grounds raised by them in appeal memo,
whereby, they have been harping upon the learned trial court has
erroneously decreed said original suit on the grounds mentioned in
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the plaint without considering pleadings of both the parties, settled
principles of law and documents placed on record. Considering the
nature of those grounds, it can be said that the same needs
consideration on merit. Thus, in view of those grounds prima facie
substance is found in the contentions of appellans regarding they
have chance to succeed in appeal. As a result thereof, they have made
out a case for staying the said decree. Therefore, we answer point
no.1 in the affirmative.
As to Point No. 2 :
9. For determining the reasonable amount of
compensation, respondents have placed on record valuation report of
government registered valuer by name Mr. Datta Khandekar, whereby,
it is proposed the monthly compensation of suit premises would be
Rs. 29,000/-. In rebuttal to it, appellants have placed on record no
documents. However, the learned counsel for appellants has
vehemently argued for not relying on said proposed amount of
compensation for few reason. Firstly, the suit premises is a kaccha
structure. Secondly, the said report is based on ready reckoner which
is not a correct method as the same is used for charging stamp duty.
And thirdly, the market rate prevailing in the area of suit premises is
Rs. 5,000/- p.m. In view thereof, let us see whether the same are
good grounds for discarding the said valuation report.
10. It is pertinent to note that the said application is filed on
21.09.2024 and the said valuation report came to be prepared on
11.10.2024 at the instance of respondent. From the same report it
can be gathered that for determining fair and reasonable amount of
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compensation respondents got it prepared. The said report states that
it is prepared by government registered valuer Shri Khandekar. It is
not disputed by appellants by filing rejoinder or during their oral
argument. Hence, same needs consideration for determining the
same.
11. On perusal of the said report it appears that it is in
detail. It has considered both methods i.e. investment method as well
as market method. The same is prepared on the basis of transactions-
2024 i.e. Index-2 is of leave and license agreement dated 10.10.2024
of 190 sq.ft.area in the area of suit premises on monthly rent of Rs.
104000/- p.m. for first 36 months and Rs. 109300/- p.m. for next 24
months. Secondly, Index-2 is in respect of leave and license
agreement dated 10.10.2024 of area 380 sq.ft.in area of suit premises
on monthly compensation of Rs. 256608/-. Both the said transactions
are in respect of commercial premises. Admittedly, suit premises is
also commercial premises.
12. The said report also states that for arriving to the said
figure, 50% discount to the rental rate of comparable permanent,
licensed shop is justified based on structural differences, legal status
and associated risk. In view of it, the above ground raised by learned
counsel for appellants regarding as the suit premises is kacchha
structure it cannot fetch the proposed amount as per the said report
needs no consideration. One more reason for the same is that due to
want of cogent material on record in respect of the suit premises is of
kacchha structure.
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13. So far as ground of ready reckoner is concerned, the
same also needs no much consideration because while determining
the said proposed amount market rental method is also considered.
Consequently, no substance is found in the contentions of appellants
that it fetches the compensation at Rs. 5000/- p.m. in view of
prevailing market rate and due to non corroborating evidence in
respect of it.
14. Considering the nature of the suit premises and premises
in both the above stated leave and license agreements in the said
valuation report relied upon by respondents, this court is of the view
that reasonable compensation of Rs. 25,000/-p.m. would meet the
ends of justice.
15. As far as period for paying the same is concerned, the
appellants are liable to pay the same from the date of decree i.e.
22.02.2024 till final disposal of this appeal. Therefore, we answer
point no. 2 accordingly.
As to point no. 3 :
16. In view of answer to point no. 1 and 2, this application
needs to be allowed subject to following conditions. Hence, the
following order :
ORDER
1) This application is allowed.
2) The execution and operation of the judgment and
decree dated 22.02.2024 in RAE Suit No. 77/181 of
2008 is stayed till disposal of this appeal on
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following conditions :
a) The appellants shall deposit the interim
compensation @ Rs. 25,000/- per month from the
date of judgment and decree dated 22.02.2024 till
final disposal of the appeal.
b) The appellants are directed to deposit arrears of
compensation @ Rs. 25,000/- per month from the
date of judgment and decree dated 22.02.2024 till
November, 2024 within the period of two months
from the date of this order.
c) The appellants are further directed to deposit
monthly interim compensation @ Rs. 25,000/- on
or before 10th day of each succeeding month till final
disposal of this appeal.
d) The Registrar of the Small Causes Court, Mumbai is
hereby directed to invest the amount of
compensation as and when deposited by the
appellants in the Court in the Fixed Deposit for a
term of at least one year in any Nationalized Bank
immediately on the very next working day in
accordance of law and as per rule.
e) If, appellants failed to comply with this order as
directed, stay granted by this order will
automatically stands vacated.
I agree,
(D.R. Mali) (A.S. Khadse)
Judge Additional Chief Judge
C. R. No. 31 C. R. No. 31
28.11.2024 28.11.2024
Dictated on : 28.11.2024
Transcribed on : 28.11.2024
Checked & signed on : 28.11.2024
/home/pa41/CR31/November-24/Exhibits/50-24--A-Exh-11-dt-28-11-24.odt bpk
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