Niles Dinubhai Patel& Anr. vs. Jamnadas Khimji Jethwa& Ors.

Order - Status 8: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. 1 Writ Petition No.5259 Of 2013. Niles Dinubhai Patel & Ors. .. Petitioners. Versus Jamnadas Khimji Jethwa & Ors. .. Respondents. Mr.Vaibhav Mehta i/by V. Mehta & Associates, Advocate for the Petitioners. Mr. Haresh Lulia, Advocate for Resp.Nos. 1 to 3. CORAM => S.V. GANGAPURWALA, J. DATE => 22nd JULY, 2013. P.C. :- The petitioners are assailing the order granting interim compensation @ Rs.15,000/- per month. (2) The learned counsel for the petitioners strenuously contends that the courts below have not considered all the relevant factors while arriving at the conclusion that the petitioners (original defendants) have to pay Rs.15,000/- per month as compensation at a time of granting stay to the decree of the trial court. (3) The learned counsel submits that there are various factors which are required to considered while passing an order about compensation. The learned counsel relied on following reported cases :- (i) Chandrakant Dhanu & Ors., Versus Sharmila Inder Kumar Kapur & Ors., reported in 2009(1) BOM.C.R. 698. (ii) Marjorie Passanah & Ors., Versus Mumtaz Iqbal Shaikh, reported in 2008(6) BOM.C.R. 72. (4) The learned counsel submits that the building is constructed in the year 1971. Lift facility is not available to the said building. Averment of the present petitioners that it will not possible for them to pay said amount, has not been considered. It is also not considered that the respondent is not required to spend for the building as the tenants have formed an Association and they are taking care of the management and expenses. The learned counsel for the petitioners submits that, leave & license agreement relied upon is not in respect of the similarly situated property. The learned counsel for the petitioners submits that, the fact the adjacent premises has been taken up for redevelopment and the occupiers therein are relocated in another locality and for that Rs.40/- per sq.fts. is being paid by the developer. Said agreement did not have any nexus with the present matter and would be in respect of the altogether different property and in altogether different situation. (5) The learned counsel for the respondent supports the order. The respondent has produced on record leave and licence agreement, which is in respect of the property situated in the same locality. It shows that, rent was @ Rs.40/- per sq.fts. The petitioners have not produced on record any agreement showing that similar property is given at lesser rate. (6) No doubt, while considering an application for stay and imposing conditions about the payment of the amount more than the contractual one, the court is required to consider various facets of the matter and is not required to be guided only by other agreement. However, the court is required to have some material on record to arrive at just conclusion. Agreement produced on record is registered agreement. Even if I consider case of the petitioners that building is constructed in the year 1971 to which, lift facility is not available, so also tenants are expending the amount; still the courts have awarded the amount as per the leave & licence agreement produced on the record, which is of the year 2010. The petitioners claims to be in possession of 900 Sq.Fts. of the area where-as respondents contend that same is more. The court has directed payment @ Rs.15,000/- per month as compensation amount, which would be approximately @ Rs.15/- per sq.fts. Order is passed on 26th April, 2013. The property is situated in the Goregaon, Mumbai locality. (7) Considering the area occupied by the petitioners, the court has directed the payment @ Rs.15,000/- per month towards the compensation. Considering the above, discretion exercised by the court cannot be said to be unreasonable one. Discretion has been exercised in plausible manner. In the light of above, the impugned order does not suffer from an error on the face of record, warranting interference of this court. Therefore, in the circumstances, I am not inclined to interfere with the impugned order in the writ jurisdiction of this Court. (8) The petitioners shall pay arrears of compensation as directed by the courts below by 31st December, 2013 and shall thereafter pay the amount regularly on or before 10th day of each calender month. The Writ Petition is, accordingly, disposed of. ( S.V. GANGAPURWALA, J.)