Sanjay Balwantrai Doshi And Anr vs Asiatic Co-Operative Housing ...
2021 Latest Caselaw 14344 Bom

                                                                              19-ia-2645-2021.doc




                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION

         Digitally
                                  INTERIM APPLICATION NO. 2645 OF 2021
         signed by
         SHRADDHA                                   IN
SHRADDHA KAMLESH
KAMLESH TALEKAR
TALEKAR
                                   FIRST APPEAL (ST.) NO. 16917 OF 2021
         Date:
         2021.10.06

                      1. Mr. Sanjay Balwantrai Doshi
         18:55:54
         +0530

                      & Anr.                               ... Applicants/Appellants
                             Versus
                      Asiatic Co-operative Housing Society
                      Limited                              ... Respondent
                                                     .....
                      Mr.Mahindra Pandey a/w. Mr. Rahul R. Tiwari, Advocate for
                      Applicants/Appellants.
                      Mr. Rajesh Jain a/w. Mr. Rohit Jain i/b Legal Juris Advocate for the
                      Respondent.
                                                      .....
                                               CORAM           :   N.J. JAMADAR, J.
                                               DATE            :   4th October, 2021
                      PER COURT:

                      1.    Heard the learned counsel for the applicants-appellants and

                      the learned counsel for the respondent.


                      2.    This application is preferred seeking stay to the execution,

                      operation and implementation of the judgment and decree in S.C.

                      Suit No.2528 of 2013 passed by the learned Judge, City Civil Court,

                      Greater Mumbai, whereby the defendants-applicants have been

                      declared to be the trespassers and directed to hand over possession

                      of the suit garage to the plaintiff-respondent within one month

                      from the date of the said decree.


                      3.    Mr. Pandey, the learned counsel for the applicants submits

                                                          1 of 4
                                                            19-ia-2645-2021.doc




that the applicants-defendants were not provided an effective

opportunity of hearing and the suit went virtually undefended. The

suit garage was      acquired by the applicants-defendants for a

valuable   consideration.   Thus,   the   applicants     would      suffer

irreparable loss, in the event the decree is executed.


4.    In opposition to this, the learned counsel for the respondent-

plaintiff would urge that the claim now sought to be made by the

applicants that effective opportunity of hearing was not provided to

the applicants is belied by the record. The applicants did participate

in the suit and even filed affidavits of evidence. Despite ample of

opportunities, the applicants did not turn up for the arguments and

eventually the suit came to be be decreed by a reasoned order.

Since the applicants have no semblance of title to the suit garage,

the application for stay deserves to be rejected, submitted Mr.Jain,

learned counsel for the respondent.


5.    Evidently, the claim of the applicants is rested on the Deed of

Transfer/Release, dated 20th October 2012, which the trial court

has found to be null and void. However, the fact remains that the

applicants have been in possession of the suit garage. The question

of nature of possession thereof thus warrants adjudication.

Arguable questions arise as regards the legality, propriety and



                                 2 of 4
                                                             19-ia-2645-2021.doc




correctness of the impugned judgment. Therefore, I am impelled to

stay the execution and operation of the impugned decree.


6.    At the same time, since the applicants have been declared to

be trespassers and, consequently, in unlawful occupation of the suit

garage, it would be expedient, in the interest of justice, to direct

the applicants to pay compensation towards the occupation of the

suit garage.


7.    In the totality of the circumstances, it would be appropriate

to direct the applicants to deposit compensation at the rate of

Rs.10,000/- per month from the date of the suit till date, and

continue to deposit the compensation at the said rate, with half

yearly intervals, till the disposal of this appeal.


8.    Hence, the following order :


                                       ORDER

(i) The application stands allowed in terms of

prayer clauses (a) and (b), subject to deposit of

compensation for occupation of the suit garage

at the rate of Rs.10,000/- (Rupees Ten

Thousand Only) per month from the date of

institution of the suit, till date.

3 of 4 19-ia-2645-2021.doc

(ii) The arrears of compensation be deposited

in this Court within a period of one month from

today.

(iii) The applicant-appellant shall continue to

deposit the compensation at the aforestated

rate, at half yearly intervals, till the disposal of

this appeal.

The application stands disposed of.

Shraddha Talekar, PS ( N.J. JAMADAR, J. )

4 of 4