Bombay High Court
Smt. Sakkar Khanu Gulam Hussein ... vs Mrs. Nasima Zulkernain Merchant on 16 March, 2021
Bench: S. K. Shinde
Rane 1/5 WP-7921-2019 (SR.4)
16.3.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7921 OF 2019
Smt. Sakkar Khanu Gulam Hussein
Jiwani .....Petitioner
(Orig. Def.)
V/s.
Mrs. Nasima Zulkernain Merchant ....Respondent
(Orig. Plaintiff)
****
Mr. Kezer Kharawala i/by. Lex Juris, Advocate for the
petitioner.
Mr. Kunal Bhanage, Advocate for the respondent.
CORAM : SANDEEP K. SHINDE, J.
Tuesday, 16th March, 2021.
P.C. :
1. Heard Mr. Kharawala, learned Counsel for the
petitioner and Mr. Bhanage, learned Counsel for the
respondent.
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16.3.2021
2. Pending Appeal No.86/2013 arising from
eviction decree dated 6th May, 2013 passed in RAD Suit
No.198/296 of 2003, the Appellate Bench vide order dated
7th September, 2016, stayed the execution of the impugned
decree subject to; (i) deposit of interim amount of
compensation @ of Rs.40,000/- per month from the date of
impugned judgment and decree dated 6th May, 2013; (ii)
clear the arrears of interim compensation @ Rs.40,000/-
per month by 10th October, 2016; (iii) pay interim
compensation with effect from 1st October, 2016 @
Rs.40,000/- per month upto the date on/or before 10 th day
of each month.
3. In October, 2016 petitioners moved an
application Exhibit-27 and sought review of order dated 7th
September, 2016.
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16.3.2021
4. Feeling aggrieved by order dated 7th September,
2016 the subject petition was preferred on 14th March, 2017.
However, petitioners conveniently kept the review
application Exhibit-27 alive. Interestingly, pending Writ
Petition, review was heard. It was dismissed on 29th
October, 2018. The order does not show or reflect that the
Writ Petition filed, was brought to the notice of the learned
Judge. However, in meanwhile, petitioner had deposited
Rs.5,00,000/- but since balance amount was not deposited
in time, application (Exhibit-38) was moved to condone the
delay. The learned Additional Chief Judge, condoned the
delay on 1st February, 2019 subject to deposit of balance
amount within seven days with interest at the rate of 15%
p.a. Whereafter, petitioner amended the petition on 12 th
July, 2019 whereby order dated 1st February, 2019 was
challenged on all possible grounds. One of the ground was,
"the Appellate Bench has erred in passing the second
impugned order dated 1st February, 2019 and has
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16.3.2021
erroneously applied the principles as laid down in Section
15(3) of the Maharashtra Rent Control Act.
5. That in February, 2019, another application
(Exhibit-141) was filed by the petitioners seeking
modification of order dated 1st February, 2019 (passed
below Exhibit-38) and order dated 7th September, 2016
(Exhibit-8). Another prayer was to extend time to deposit
the amount due.
6. Thus, it is to be observed that, the petitioner has
filed more than two applications before the Bench, Small
Causes Court at Bombay for the reliefs which were also
sought in this petition. More so, while hearing this petition,
aforesaid proceedings were conveniently "not brought to
the notice of this Court".
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16.3.2021
7. Proceedings referred hereinabove clearly show,
petitioner made all possible efforts to delay the proceedings
either by seeking review and/or extension of time to deposit
the compensation or review of review.
8. Be that as it may, the conduct of the petitioner
clearly shows, she avoided to pay compensation as directed
by the Appellate Court, in time. Circumstances therefore
warrant, demand of interest. May not be at the rate of 15%
p.a., but 10% p.a. surely. As such, the impugned order
dated 1st February, 2016 stands modified, accordingly.
9. The petition is partly allowed and disposed of in
Digitally
Neeta
signed by
Neeta S. aforesaid terms.
Sawant
S. Date:
Sawant 2021.03.20
12:21:24
+0530
(SANDEEP K. SHINDE, J.)
