Bombay High Court
M/S H. Firdosy And Sons, Mr. Adam Ali H. ... vs National Insurance Co. Ltd., Kolkatta ... on 6 March, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5712 OF 2017
1. Adam Ali H. Firdosy,
aged about 77 yrs, Occ. Business,
R/o "Firdos", 4, Farmland, Pt. Jawaharlal
Nehru Marg, Behind Firdos Chambers,
Ramdaspeth, Nagpur.
2. Inayat Ali s/o Late Hussain Firdosy,
aged about 73 yrs, Occ. Service,
3. Akbar Ali s/o Late Hussain Firdosy,
aged about 69 yrs, Occ. Service,
Nos.2 & 3 both R/o 1048 Onys Drive,
Walnut, California, U.S.A.
Plaintiff Nos.2 & 3 through their constituted
Power of Attorney Adam Ali H. Firdosy,
the Plaintiff No.1 hereinabove. ... Petitioners.
-vs-
1. National Insurance Co. Ltd.
3, Middleton Street,
Kokatta-700 071
Through its Managing Director,
2. The Regional Manager,
Nagpur Region,
National Insurance Co. Ltd.
2Nd Floor, Mangalam Arcade,
179-B, Dharampeth Extn.,
Near Gokulpeth Market,
Nagpur
3. The Divisional Manager,
D.O.I., National Insurance Co. Ltd.,
1st Floor, Firdos Chamber,
Near Panchsheel Cinema Square,
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Wardha Road, Nagpur. ... Respondents.
Shri N. H. Shams, Advocate for petitioners.
Shri C. A. Anthony, Advocate for respondent Nos.1 and 2.
CORAM : A. S. CHANDURKAR, J.
DATE : March 06, 2018.
Oral Judgment :
Rule.
Heard finally with consent of learned counsel for the parties. The petitioners who are the original plaintiffs are aggrieved by order passed by the first Appellate Court on the application for stay that was moved by the respondents during pendency of the appeal filed by them challenging the decree for eviction.
2. The respondents are in occupation of property admeasuring 3582 sq. ft. which was let out at the rent of Rs.69,168/- per month. The petitioners filed suit for ejectment which came to be decreed on 23/01/2017. The respondents filed an appeal challenging that decree. In the appeal they moved an application for staying the execution of the decree. The Appellate Court stayed the execution of the decree subject to the respondents depositing occupation charges of Rs.1,00,000/- per month. Being aggrieved by the quantum of occupation charges, the petitioners have challenged that order.
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3. Shri N. H. Shams, learned counsel for the petitioners submitted that the Appellate Court has not given any reasons for determining the occupation charges at Rs.1,00,000/- per month. According to him, in the light of judgment of this Court in Super Max International Pvt. Ltd. vs. State of Maharashtra 2009(2) Mh.L.J. 134 the petitioners are entitled to higher occupation charges. In that regard he submitted that by calculating the percentage of the value of the property, the occupation charges would come to Rs.1,93,877/-. He then submitted that during pendency of the suit, the respondents had offerred rent of Rs.49/- per sq. ft. in the year 2012 and the trial Court had granted compensation at the rate of Rs.50/- per sq. ft. while decreeing the suit. He therefore submitted that the amount of occupation charges deserves to be enhanced.
4. Shri C. A. Anthony, learned counsel for the respondents supported the impugned order. According to him, the substantive appeal challenging the decree for eviction is pending. The finding recorded with regard to the amount of compensation by the trial Court is also under challenge. He submitted that considering the facts of the case the Appellate Court was justified in directing payment of Rs.1,00,000/- per month as occupation charges. He also submitted that the evidence on record did not justify grant of higher occupation charges.
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5. Heard the respective counsel. The suit for possession had been decreed by the trial Court and the appeal challenging the same is pending before the Appellate Court. The trial Court while deciding point Nos.3 and 4 has referred to exchange of communications between the parties in which the respondents offerred to pay rent of Rs.49/- per sq. ft. It thereafter directed payment of compensation at Rs.50/- per sq. ft. The monthly rent on that basis comes to Rs.1,79,100/-. According to the petitioners on the basis of ready reckoner and by determining the value of the property, 6% percent thereon would come to Rs.1,93,877/-. The Appellate Court noted that the findings of the trial Court were under challenge in the appeal and therefore determined the amount of occupation charges at Rs.1,00,000/- per month.
6. Considering the fact that in the year 2012 the respondents had offerred an amount of Rs.49/- per sq. ft. as reasonable rent for the purposes of extension of lease coupled with the fact that as per the ready reckoner the occupation charges as determined by the petitioners come to Rs.1,93,877/-, by taking a prima facie view of the matter I feel the Appellate Court ought to have granted higher amount of occupation charges to be paid by the respondents. Thus taking an overall view of the matter and in the light of the offer made at Exhibit-50 as well as reply filed on behalf of the petitioners to the stay application, the reasonable amount of occupation charges would come to Rs.1,30,000/- per month to be paid during pendency of the appeal. ::: Uploaded on - 08/03/2018 ::: Downloaded on - 09/03/2018 01:41:05 ::: 926-WP-5712-17 5/5
6. In view of aforesaid the order dated 15/03/2017 is partly modified. It is directed that from March 2018 and during pendency of the appeal the respondents shall pay occupation charges of Rs.1,30,000/- per month. This amount is determined without prejudice to the rights of the parties.
The Writ petition is partly allowed in aforesaid terms. No costs.
JUDGE Asmita ::: Uploaded on - 08/03/2018 ::: Downloaded on - 09/03/2018 01:41:05 :::