It was the submission of Shri Sanglikar that in terms of the Judgment of the Learned Single Judge in Chandrakant Dhanu's case, the Petitioners i.e. the original Appellants cannot be directed to pay more than a percentage of the prevalent market licence fees. In my view, it is not possible to accept the said contention as the factor relied upon by Mr. Sanglikar is only one of the factors amongst other factors which are to be taken into consideration whilst fixing the interim compensation as a condition for grant of stay, but the same would also depend on the facts and circumstances of each case. The Judgment of the Apex Court in Yacob's case (supra) would also have no application as in the said case the issue was of fixation of fair rent i.e. the standard rent under the Bombay Rent Act and it is in the said context that the Apex Court held that the value of the structures has no relevance. The facts of the instant case can be distinguished from the facts of the case that were there before the Apex Court in Yacob's case (supra) as in the instant case, the Petitioners are faced with a decree of eviction in respect of which decree they have sought a stay and therefore the Appellate Bench of the Small Causes Court was entitled to take into consideration amongst other things the monetary benefit that the Petitioners were deriving out of the structures and sheds. It is required to be noted that the suit premises i.e. the land is situated in Byculla that is in South Mumbai and it is about 4 to 5 kilometers from V.T. Station or Chatrapati Shivaji Terminus. The said land can therefore be said to be a prime property in the context of its location. The Petitioners are exploiting the said plot of land which has been leased and assigned to them by letting out the sheds and the structures which have been constructed on the said land. The tabular statement reproduced hereinabove shows that the licencees are Companies as well as the Canadian Consulate from whom the Petitioners have taken rent free deposit as also are getting handsome licence fees. The conduct of the Petitioners shows that they have let out the premises when the Suit was pending. As can be seen from the tabular statement for an area of 6865 sq.ft. the Petitioners are getting licence fees of Rs. 4,32,500/- per month. Faced with the situation wherein the valuation report produced by the Petitioners shows very low figure of Rs. 3,62,409/- and the valuation report of the Respondents shows a very high figure of Rs. 27,38,353/-. The Appellate Bench of the Small Causes Court took upon itself to fix the compensation having regard to the following factors namely land being lease hold, zone in which land is situated , available FSI, non touch road, structures being licenced, non onerous to the Appellants and non denying the right of the Appellants and fixed the compensation at Rs. 10,00,000/- per month and also directed the deposit of said amount from a particular date and directed the Petitioners to furnish undertaking in terms of the operative part of the impugned order.
13. In so far as the amount fixed by the Appellate Bench of the Small Causes Court is concerned, the said amount would also have to be considered in the context of the licence fees and the interest free deposits which the Petitioners are getting from the licensee who are in occupation of various sheds in the suit premises. This is in view of the fact that by the judgments of the Apex Court it is well settled that the decree holder is required to be compensated for the loss caused to him on account of the decree being stayed. If the said principle is applied, then the amount fixed at Rs. 10,00,000/- per month cannot be said to be excessive, exorbitant or fanciful, as has been observed by the Apex Court in the case of Supermax International Pvt Ltd.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 4230 of 2017
Decided On: 05.05.2017
Hasanali Hasambhoy Jetha and Ors. Vs. Razia Yusuf Noorani and Ors.
Hon'ble Judges/Coram:
R.M. Savant, J.
