Delhi High Court
The Commissioner Central Excise & ... vs Usha Vaish & Ors on 20 February, 2017
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 990/2016 & C.M. NO. 46740-41/2016
THE COMMISSIONER CENTRAL EXCISE & ORS ..... Appellants
Through: Mr. Amish Aggarwala and
Mr. Satish Aggarwala, Advocates.
versus
USHA VAISH & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 20.02.2017
1. The appellants/defendants have assailed the judgment and decree
dated 10.12.2015 passed by the learned trial court in favour of the
respondents/plaintiffs in a suit for possession, permanent injunction, arrears
of rent and mesne profit etc. in respect of flat No. 312A, 8, Deep Shikha
Building, Rajendra Place, New Delhi-110008.
2. During the pendency of the aforesaid suit, the appellants/defendants
had handed over vacant peaceful possession of the suit property to the
respondents/plaintiffs in the October, 2010, which date was however
disputed by the other side before the trial court. This left the dispute with
regard to the arrears of rent/mesne profits.
3. Under the impugned judgment and decree, the trial court had awarded
mesne profit in favour of the respondents/plaintiffs @ 60 per sq. feet per
month with effect from 016.2008 to 02.11.2010 and the
appellants/defendants were directed to render the accounts of the payment of
the maintenance charges by them to the Building Maintenance Agency.
Costs of the suit were also awarded in favour of the respondents/plaintiffs.
4. Aggrieved by the aforesaid judgment, the appellants/defendants have
filed the present appeal along with an application for seeking condonation of
delay of 176 days in filing the appeal.
5. Having regard to the submission made by learned counsel for the
appellant on 19.12.2016 to the effect that the mesne profits, as awarded by
the trial court had already been tendered to the respondents/plaintiffs in the
execution proceedings filed against them, it was enquired as to whether the
said amount had been tendered without prejudice to the rights of the
appellants/defendants to file/pursue the present appeal. Learned counsel for
the appellants/defendants had stated that he may be permitted to verify the
correct position from the department. At the request of the counsel for the
appellant, the matter was adjourned to 31.1.2017 and on 31.1.2017, to
20.2.2017 i.e., today.
6. Today, learned counsel for the appellants/defendants states that he has
obtained instructions from the department and filed copies of the orders
passed in Ex.No. 125045/2016 which reveal that the decretal amount was
tendered by an officer of the appellants/defendants to the authorised
representative of the respondents/plaintiffs on 18.11.2016 in the execution
petition which was disposed of. At the time of tendering the decretal
amount, the appellants/defendants did not reserve their right to pursue the
present appeal that was filed on 27.10.2016, but remained under objections
and was re-filed on six occasions, only to be listed before the Court on
19.12.2016. By the said date, the decretal amount had already been paid to
the respondents/plaintiffs.
7. In the above circumstances, the appeal is disposed of as infructuous,
alongwith the pending applications.
8. Learned counsel for the appellants/defendants requests that as the
appeal has been is disposed of as infructuous at the stage of admission itself,
the court fees affixed thereon may be refunded.
9. The Registry is directed to issue a certificate in favour of the appellant
for refund of court fee to the extent of Rs.16,000/-.
HIMA KOHLI, J
FEBRUARY 20, 2017
ap/rkb
