Bharat Petroleum Corporation ... vs Kalpataru Properties Pvt Ltd
2023 Latest Caselaw 8227 Bom

                                        1        26 cra 348-22 with ia 20205-22 -c.doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION

                       CIVIL REVISION APPLICATION NO.348 OF 2022
                                         WITH
                        INTERIM APPLICATION NO.20205 OF 2022
                                           IN
                       CIVIL REVISION APPLICATION NO.348 OF 2022

 Bharat Petroleum Corporation Limited                   ... Applicant
       Vs.
 Kalpataru Properties Private Limited                   ... Respondent
                                    -------

 Mr.Pankaj Savant, Senior Advocate with Mr.Gaurav Jain i/by M/s The
 Law Point, Advocates for the Applicant.
 Mr.Girish S. Godbole, Senior Advocate with Mr.Suneet Kumar Tyagi and
 Mr.Omprakash Vaishnaw, Advocates for the Respondent.

                                            -------

                            CORAM :   ABHAY AHUJA, J.

                            DATE :    10 AUGUST, 2023.


 P.C. :

1. This Revision Application seeks to assail the order dated 10 th

February, 2022 passed by the Appellate Bench of the Small Causes Court

upholding the order of the Trial Court dated 18 th June, 2018 in Mesne

Profit Application No.612 of 2010. Mr. Savant, learned senior counsel for

the Applicant would submit that the Trial Court after considering the

instances cited by the Applicant as well as the Respondent simply

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considered the average of the rates of mesne profit and came up with the

figures of Rs.57.21 per sq. ft. per month for the period from 1 st November,

2003 to 31st December, 2007 and the rate of Rs.121.07 per sq. ft. per

month for the period from 1 st January, 2008 till the date of handing over

possession which is 28th January, 2013. Learned counsel would submit

that the Appellate Court has simply confirmed the order of the Trial Court.

He would submit that no independent mind has been applied and simply

an averaging of the rates by the Revision Applicant and by the Respondent

has been done which is completely in breach of the principles laid down.

Learned senior counsel draws the attention of this court to paragraph

No.6 of the Appellate Court order to submit that the Respondent

supported the judgment and decree of the Trial Court but assailed the

finding of the Trial Court. He would submit that it has been clearly

recorded in the said paragraph that according to the counsel for the

Respondent the mesne profit determined by the learned Trial Judge was

not proper. Learned counsel would submit that the Respondent has not

challenged the said order before this court, despite submitting that the

computation of the mesne profit by the Trial Judge was not proper.

Learned senior counsel would submit that on this ground alone the

Revision Application requires to be admitted. He would also submit that

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pursuant to order dated 5th August, 2022 the Revision Applicant has also

deposited the undisputed amount in this court albeit without interest and

be allowed to do so. Learned counsel would also submit that the

Respondent may be permitted to withdraw this amount alongwith interest

as the same is undisputed.

2. On the other hand, Mr.Godbole, learned senior counsel for the

Respondent would submit that there is no perversity in the orders of the

Trial Court as well as the Appellate Court as the method of taking an

average of the two valuations has been recognized by the Hon'ble

Supreme Court in the case of Humayun Dhanrajgir and ors. Vs. Ezra

Aboody1 and therefore, no fault can be found in the two orders.

3. Referring to paragraph No.6 of the Appellate Court order, learned

senior counsel would submit that although by following the method of

averaging the Respondent stood to loose, however, to bring quietus to the

litigation, the said order was not challenged and therefore, the submission

on behalf of the Respondent in paragraph No.6 of the Appellate Court

order be accordingly understood. Learned senior counsel would submit

that admitting the matter would delay a money claim as the Revision 1 (2008) 6 Bom CR 862

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Applicant has already handed over the possession to the Respondent.

4. Having heard the learned counsel at some length and having

perused the impugned decision, this court is of the view that interests of

justice would be best served if the Revision Application be finally heard at

the stage of admission.

5. Accordingly, list this matter for final disposal on 4 th October, 2023.

Filing of private paper-book is dispensed with.

6. In the meanwhile, let the Revision Applicant deposit the interest

portion at the rate of 10% on the undisputed amount already deposited

in the Appellate Court within a period of four weeks. The Respondent is at

liberty to withdraw the undisputed amount alongwith interest so

deposited subject to usual undertaking.

                                                      (ABHAY AHUJA, J.)




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