Bombay High Court
Central Warehousing Corporation vs Shrenik Narendra Baldota And Anr on 13 June, 2019
Author: R. G. Ketkar
Bench: R. G. Ketkar
RPWST14956_19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIW PETITION (ST.) NO.14956 OF 2019
IN
WRIT PETITION NO.3883 of 2019
ALONG WITH
CIVIL APPLICATION NO.204 OF 2019
AND
CIVIL APPLICATION NO.1334 OF 2019
IN
WRIT PETITION NO.3883 of 2019
Central Warehousing Corporation ... Petitioner
Vs.
Shrenik Narendra Baldota and another ... Respondents
Mr. Shekhar Naphade, Senior Advocate a/w. Mr. K. K. Tyaji and Mr. R.
K. Sharma i/b. Sharma Syndicate Lex & Co. for Petitioner / Applicant.
Mr. Prasad Dani, Senior Advocate a/w. Mr. Cyrus Bharucha, Ms Shalaka
Patil and Mr. Varun Shankar I/b. M/s. Cyril Amarchand Mangaldas for
Respondent No.1.
CORAM : R. G. KETKAR, J.
DATE : JUNE 13, 2019 P.C. :
Heard Mr. Naphade, learned Senior Counsel for the petitioner / applicant and Mr. Dani, learned Senior Counsel for the respondent No.1 at length.
2. By this Petition under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), petitioner has sought review of the order dated 27.03.2019 passed by this Court in Writ Petition No.3883 of 2019. By that order, the petitioner is directed to deposit the entire amount as per the impugned orders in this Court within eight weeks and subject to such deposit, the impugned orders are 1/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc stayed. It was made clear that if the amount, as aforesaid, is not deposited in this Court within the stipulated period, the ad-interim order shall stand vacated without further reference to the Court.
3. Writ Petition takes exception to the judgment and order dated 12.10.2017 passed by the learned Judge of the Small Causes Court at Mumbai in Mesne Profit Application No.452 of 2013 arising from T.E.& R.Suit No.154/202 of 2009 as also the order dated 16.11.2018 passed by the Appellate Bench of the Small Causes Court in Miscellaneous Appeal No.148 of 2018. By these orders, the Courts below allowed mesne profit application.
4. The Petition was taken up in the production Board on 27.03.2019. At that time, attention of the learned Counsel for the petitioner, Mr.Sharma was invited to the decision of the learned Single Judge of this Court in Bhogvati Sahakari Sakhar Karkhana Limited Vs. M/s. Chaugule & Sons, AIR 2003 Bombay 185, and in particular paragraphs 9 and 10. In this case, the learned Single Judge considered the provisions of Order XLI, Rule 1(3) and Rule 5 (5) of the C.P.C. In paragraph 9, it was observed that the exercise of power under Order XLI, Rule 1(3) would curtail one important stage in the litigation i.e. proceedings for execution of the decrees which is bound to reduce the burden of the executing Courts to that extent. Absence of any application under Order XLI, Rule 5 of C.P.C. for stay and absence of any order under Order XLI, Rule 1(3) is bound to drive the decree holder to the executing Court to execute the decree. In that event, the executing Court will have no option but to initiate proceedings for execution of the decree, which is bound to take considerable time of the litigants and that of executing Court and also bound to cause strain on the purse of the litigants. In paragraph 10, it was observed that a judicial 2/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc note, at this stage, can be taken that in our country it is said that it is easy to obtain decree but difficult to execute it. If the power under Order XLI, Rule 1(3) of C.P.C. is exercised by the appellate Court, upon prima facie satisfaction, then in that event, exercise of such power would result in realisation of the fruits of the decree. The provision made under Order XLI, Rule 1(3) of C.P.C. appears to be in public interest with intention to shorten the length and width of the unnecessary litigation and to prevent multiplicity of the proceedings and at the same time to help the decree holder to realise the fruits of the decree obtained by him. This often not used provision needs to be activated and put into operation considering the flooded corridors of the Court which would not only serve the ends of justice between the parties but to serve the cause of administration of justice.
5. Upon going through the judgment, Mr. Sharma, on the basis of the instructions, gave assurance that within 8 weeks, the petitioner will deposit the amount as ordered by the impugned orders in this Court. In my opinion, Mr. Sachchidanand Rai, Superintendent of the petitioner and Advocate Sharma were justified in making the statement as regards depositing the amount. It is also to be borne in mind that by issuing direction on the basis of instructions, this Court has not directed the petitioner to pay the amount to the respondents as per the impugned orders but has directed depositing that amount in this Court. Accordingly, stay was granted subject to imposing the condition of depositing the entire amount. It is against this direction the present Review Petition is instituted.
6. In support of this Petition, Mr. Naphade submitted that basically, the orders passed by the Courts below awarding mesne profits to the respondent are without jurisdiction. He relief upon Section 19 and in 3/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc particular clauses (b) and (d) of the Presidency Small Cause Courts Act, 1882 (for short 'P.S.C.C.Act') to contend that the Small Causes Court has no jurisdiction in Suits concerning any act done by or by order of the Central Government or the State Government [clause (b)], Suits for the recovery of immovable property [clause (d)] as also clauses (e), (f), (g) and (h). He also invited my attention to Section 41 of the P.S.C.C. Act to contend that the Small Causes Court has jurisdiction to entertain and try all Suits and proceedings between the licensor and licensee, or a landlord and tenant,m relating to the recovery of possession of any immovable property situate in Greater Bombay or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. He submitted that the Legislature has consciously omitted to include expression 'mesne profits' in Section 41(1) of the P.S.C.C.Act.
7. Mr. Naphade submitted that under Section 9 of the P.S.C.C.Act, this Court has framed rules prescribing procedure to be followed and practice to be observed by the Small Causes Court. Rule 1(2) of the Presidency Small Cause Court Rules made by the High Court of Bombay (for short 'Rules') lays down that the provisions of the C.P.C. as modified from time to time in the application to the State of Maharashtra with it's First Schedule as amended by the High Court of Judicature at Bombay under Section 122 of the Said Code from time to time shall be applied immediately the Small Cause Court and the procedure prescribed thereby shall be the procedure to be followed in the said Court in all suits cognizable by it, except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the P.S.C.C.Act. He has also invited my attention to the Schedule under Rule 1(2) which deals with the additions, alterations and modifications in certain provisions of C.P.C. applicable to Money Suits 4/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc constituted under the P.S.C.C.Act. Under this Schedule, Section 2(12) and Order XX, Rule 12 are omitted. In short, he submitted that as the Small Causes Court has no jurisdiction to entertain and try the claim of mesne profits, the Courts below committed serious error in passing the impugned orders. He submitted that this issue is a fundamental issue which goes to the root of the matter. The petitioner has made out a strong prima facie case for admission of the Writ Petition and for blanket stay of the impugned order. The direction to deposit the entire amount deserves to be recalled.
8. Mr. Naphade submitted that petitioner - Central Warehousing Corporation is a statutory Corporation established by the Union of India. He submitted that in view of the decision in Sihor Nagar Palika Bureau Vs. Bhabhlubhai Virabhai, (2005) 4 SCC 1, this Court should permit furnishing of security instead of insisting deposit of the amount as per the impugned order. He also invited my attention to the provisions of Order XXVII, Rule 8-A of C.P.C. which lays down that no security as mentioned in Rules 5 and 6 of Order XLI shall be required from the Government. He further submitted that the authorities below have adopted totally perverse approach while determining the mesne profits. He submitted that Section 2(12) of C.P.C. defines the expression 'mesne profits' to mean those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. Thus, the mesne profits under Section 2(12) are the profits actually received by the person in wrongful possession of such property. However, in the present case, the Courts below have determined mesne profits on the basis of the market value. In support of this submission, he relied upon the Constitution Bench decision in Fateh Chand Vs. 5/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc Balkishan Dass, AIR 1963 SC 1405, and in particular paragraph 17. He, therefore, submitted that the order dated 27.03.2019 deserves to be reviewed. Instead of directing the petitioner to deposit entire amount as per the impugned orders, petitioner may be directed to furnish solvent security to the satisfaction of this Court.
9. On the other hand, Mr. Dani submitted that on the basis of the statements made on behalf of the petitioner and which was recorded in the order passed by this Court, petitioner is required to deposit the amount as per the impugned orders. In view thereof, no case is made out for review of the order dated 27.03.2019.
10. In so far as the contention based on Section 41 of the P.S.C.C.Act is concerned, Mr. Dani submitted that Section 43 lays down that in all Suits, appeals and proceedings under Chapter VII, the Small Causes Court shall, as far as possible and except as herein otherwise provided, follow the procedure prescribed by the C.P.C. He submitted that Rule 1(2) of the Rules also lays down that the provisions of C.P.C. as modified from time to time in the application to the State of Maharashtra with it's First Schedule as amended by the High Court of Judicature at Bombay under Section 122 of the C.P.C. from time to time is applicable to the Small Causes Court. He submitted that there are no additions, alterations and modifications in Section 2(12) and Order XX, Rule 12 of C.P.C. in the Schedule under Rule 1(2) of the Rules. The said provisions are applicable even to the proceedings before the Small Causes Court. There is no inconsistency between the procedure prescribed under the C.P.C. and the procedure prescribed by Section 41 of P.S.C.C. Act. Mr.Dani also invited my attention to Order XX, Rule 12(2) which lays down that where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits is required to be 6/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc passed in accordance with the result of such inquiry. He submitted that it is settled law that the inquiry under Order XX, Rule 12 is required to be conducted after the eviction decree is passed and after the inquiry is completed as contemplated under Order XX, Rule 12(2) then the final decree is passed. Thus, the inquiry of mesne profits is continuation of the preliminary decree of eviction and it is only after the inquiry is concluded and mesne profits is determined, the final decree is said to have been passed. He, therefore, submitted that the Small Causes Court has jurisdiction to entertain and try the mesne profit proceedings.
11. I have considered the rival submissions advanced by the learned Senior Counsel appearing for the parties. I have also perused the material on record. It is a matter of record that this Court by order dated 27.03.2019 has directed the petitioner to deposit the entire amount as per the impugned orders on the basis of the statement made on behalf of the petitioner. As mentioned earlier, this was based on the decision in Bhogvati Sahakari Sakhar Karkhana Limited (supra). A perusal of the grounds of review shows that all that has been contended is that the alleged statement of claims is neither signed by his Attorney nor signed by his Advocate even. Somebody has signed it without mentioning his / her name as Advocate for the respondent No.1. In my opinion, the grounds raised in the Review Petition can hardly be said to be the grounds contemplated under Order XLVII, Rule 1 of C.P.C.
12. In so far as the contention based on Section 41 as also the approach of the Courts below in determining mesne profits contrary to Section 2(12) of C.P.C. as also decision of the Apex Court in Fateh Chand (supra) is concerned, the learned Counsel suggested that these contentions may be considered while hearing the Petition for admission. Even otherwise, in my opinion, these contentions cannot be dealt with in 7/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc the Review Petition and can conveniently be dealt with in the main Petition as the same is pending for admission.
13. In so far as the contention based on Order XXVII, Rule 8-A is concerned, the said provision lays down that no security as mentioned in Rules 5 and 6 of Order XLI shall be required from the Government. In the present case, petitioner is a statutory corporation and is not a Government as contemplated under Order XXVII, Rule 8-A of C.P.C. In view thereof the reliance placed on this provision does not advance the case of the petitioner.
14. Lastly, as far as the reliance placed on the decision in Sihor Nagar Palika Bureau (supra) is concerned, in my opinion, the said judgment is not applicable in the facts of the present case. In that case, the respondent was given a contract for collection of octroi on behalf of the appellant. The contract was terminated by the appellant and the respondent filed a civil suit for recovery of damages. The suit was decreed in favour of the respondent. The appellant preferred first appeal in the High Court. Pending that appeal, appellant moved application under Order XLI Rule 5 of C.P.C. seeking stay on the monetary decree. On 19.9.2003, the High Court admitted the appeal and granted a stay subject to the condition that the appellant shall deposit in the court an amount of Rs.8,78,925/- with 8% interest. The appellant moved application seeking variation of that order inter alia contending that it was facing financial difficulty on account of abolition of octroi and was badly in need of money for carrying out its multifarious public utility services and activities. The appellant offered to furnish security to the satisfaction of the Trial Court and prayed for modification of order dispensing with requirement of depositing the amount. The High Court declined the prayer which gave rise to filing of the proceedings before 8/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc the Apex Court. In my opinion, no such case of financial difficulty is made out in the Review Petition. In view thereof the decision in Sihor Nagar Palika Bureau (supra) does not advance the case of the petitioner.
15. In the case of Kamlesh Verma Vs. Mayawati, AIR 2013 SC 3301, the Apex Court has considered the scope of review and has observed thus, "The jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of C.P.C. "
16. Applying the tests laid down by the Apex Court to the facts of the present case, no ground is made out for review of the order dated 21.01.2014. Review Petition fails and the same is dismissed.
17. At this stage, Mr. Naphade, on instructions from Mr. Rahul Gaikwad, Manager (General), who is present in the Court, states that Mr. Gaikwad is authorized to make statement on behalf of the petitioner. He has tendered communication dated 13.06.2019 addressed by Mr.Arvind Chaudhri, Group General Manager (Personnel) to the Regional Manager, Central Warehousing Corporation, Regional Office, Mumbai authorizing Mr. Rahul Gaikwad to make a statement before this Court about depositing the balance amount in this Court within a period 9/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 ::: RPWST14956_19.doc of four weeks from today. The said communication is taken on record and marked 'X' for identification. Mr. Naphade, on instructions, states that according to the petitioner, the balance amount to be deposited as per the impugned orders comes to Rs.5,03,37,412/-. As against this, Ms Patil submits that as per the respondent, balance amount is Rs.6,62,98,457/- as on 31.05.2019. All these issues can be considered at the time of admission of the main Petition.
18. At the request of Mr. Naphade, time of four weeks is extended for depositing Rs.5,03,37,412/- in this Court. This shall be without prejudice to the rights and contentions of the petitioner. Order accordingly.
(R. G. KETKAR, J.) Minal Parab 10/10 ::: Uploaded on - 14/06/2019 ::: Downloaded on - 15/06/2019 01:13:27 :::