Sunday, 15 December 2019

Whether mesne profits can be awarded in obstructionist notice?

The Trial Court has also placed reliance on the
judgment of the Apex Court reported in 1999 Bom. R. C. 357 in the
matter of Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd.,
wherein the Apex Court has held that if the execution of a decree is
resisted by the obstructionist, then obstructionist is liable to pay mesne
profits equivalent to the market rate.

 It is an undisputed position that the Petitioner is in
occupation of the tenanted premises and in terms of the judgment of the
Apex Court in Marshall (supra), the obstructionist is liable to pay for such
occupation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10003 OF 2015

Shri. Dnyandev Tukaram Kshirsagar Vs M/s. Pyramid Corporation 

CORAM : R.M. SAVANT, J.
DATE : 16th NOVEMBER, 2015



1. The Writ Jurisdiction of this Court is invoked against the
order dated 05.09.2015 passed by the Learned Judge of the Small Causes
Court, Mumbai, by which order the application Exh.28 filed by the
Respondent No.1 herein i.e. decree holder for directing the Petitioner who
is an obstructionist for depositing in the Court an amount for use of the
premises pending consideration of his application obstructing the decree
came to be allowed and the Petitioner herein was directed to deposit an
amount of Rs.10,000/per
month as mesne profit/compensation from the
date of decree passed in RAE & R Suit No.1377/2050 of 2006 till date and
future compensation/mesne profits at the same rate on or before 10th of
each english calender month till the decree is satisfied. The Trial Court has
whilst fixing the said amount of Rs.10,000/has
relied upon the valuation

report submitted by the Respondent No.1 herein of the Chartered Engineer
V. K. Lad in which valuation report the market value of the property shown
is Rs.23,33,931/and
the expected rental compensation per month is
mentioned as Rs.17,504/.
The Trial Court has also placed reliance on the
judgment of the Apex Court reported in 1999 Bom. R. C. 357 in the
matter of Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd.,
wherein the Apex Court has held that if the execution of a decree is
resisted by the obstructionist, then obstructionist is liable to pay mesne
profits equivalent to the market rate.
2. The impugned order dated 05.09.2015 is sought to be
challenged on behalf of the Petitioner by contending that the area wherein
the suit premises are located has been declared as a slum and therefore
whether a decree for eviction could be passed is in question. In support of
the said contention, some documents are sought to be relied upon by the
Learned Counsel for the Petitioner.
3. Per contra, it is the submission of the Learned Counsel
appearing for the Respondent No.1 that though the said area was declared
as a slum, the said declaration was set aside by the Slum Tribunal by
judgment and order dated 13.12.1995 and the matter came to be
remanded back to the Competent Authority for a fresh inquiry. It is not
necessary for this Court to enter into the said arena in view of the fact that

the obstructionist proceedings adopted by the Petitioner are pending
before the Small Causes Court, Mumbai. The arrangement made by the
impugned order is pending consideration of the said obstructionist
proceedings. It is an undisputed position that the Petitioner is in
occupation of the tenanted premises and in terms of the judgment of the
Apex Court in Marshall (supra), the obstructionist is liable to pay for such
occupation. Primafacie
in absence of any contra material by way of
notification produced by the Petitioner to show that the declaration of
slum still continues, the submission of the Learned Counsel for the
Respondent No.1 at this stage is required to be accepted. The Learned
Counsel appearing on behalf of the Petitioner also sought to question the
quantum fixed by the Trial Court by the impugned order. It is required to
be noted that the premises are totally admeasuring 600 sq.ft. and that too
in a busy commercial area as Dharavi in Mumbai. The Learned Counsel
appearing for the Respondent No.1 also sought to draw this Court's
attention to an order passed by a Learned Single Judge of this Court fixing
the compensation at Rs.8000/for
a smaller premises of 150 sq.ft. in the
same area (Writ Petition No.8677 of 2015 by order dated 20th October
2015). In my view, therefore, no interference is called for with the
impugned order. The Writ Petition is accordingly dismissed.
[R.M. SAVANT, J]

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