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2015 Supreme(Bom) 404
HIGH COURT OF JUDICATURE AT BOMBAY
K.R. SHRIRAM, J.
Mridangraj Hiralal Suchak alias Barfiwalla – Applicant/Plaintiff
Vs.
Bank of Baroda – Respondents/Defendants
Civil Revision Application No. 406 & 790 of 2012, Misc. Appeal No. 158 of 2011, Misc. Notice No. 909 of 1993, L.E. Suit No. 291/338 of 1983
Decided On : 18.3.2015
Mr. Rohit Kapadia, Sr. Advocate a/w Mr. Atith Shukla i/by Mr. Ashok G. Toraskar for appellants.
Mr. P.S. Dani Sr. Advocate a/w Mr. A.R. Bamne i/by M/s. A.R. Bamne & Co. for respondents.
Headnote:Civil Procedure Code, 1908 - Section 2(12) Suit for eviction and mesne profits. - Once leave and license agreement between plaintiff and defendant is terminated, plaintiff entitled to mesne profits. As per the definition of mesne profit the amount payable is those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profits. For the period from the date of the decree until possession was handed over, the defendant held on to the money that was payable to the plaintiffs. If that amount had been placed in fixed deposit with defendant bank, the plaintiff would have earned about 8% to 10% on an average.
The bank would have lent that money to its borrowers at interest in the range of 14% to 18% p.a. thereby making a profit of 6% to 8% p.a. using the plaintiff’s money. That profit would be the profit which the defendant who was in wrongful possession has received. This profit, it would meet interest of justice, if it is shared with the plaintiff. Therefore, the rate of interest @ 6% p.a. from the date of decree until actual realization of the amount is increased to 9% p.a.
Civil Procedure Code, 1908 - Sections 2(12) and 115 Method of valuation of mesne profits. Mesne profit cannot be calculated on basis of ready reckoner rates. The appeal bench did not accept the trial Courts’ calculation of mesne profit based on ready reckoner rates. The appellate Court was correct in disregarding the same because the ready reckoner is applicable only to determine the stamp duty and it does not give any indication qua the market value/rent. In fact, the ready reckoner method of calculation had been given up by the defendants.
K.R. SHRIRAM, J.
1 Both, the plaintiff and defendant before the trial court have filed independent Civil Revision Applications. The plaintiff decree-holder has filed Civil Revision Application No.790 of 2012 and the defendant has filed Civil Revision Application No.406 of 2012. Both the Civil Revision Applications can be disposed by this common judgment. For convenience, the description of the parties in the trial court is maintained.
2 Facts, in brief, that led to the filing of the said two revision applications are as under:
3 The suit property being commercial property consisted of three shops on the ground floor of a building by name “Coronation” at Block No.C5759, Vithalbhai Patel Road, Mumbai 400 004. It is situated at C.P. Tank junction which is one of the busiest locality in that part of Mumbai, a junction of 5 roads and had access to it from the main road itself. The said 3 shops were joint together and the total area of the premises was 2255 sq. ft. (the suit premises).
4 The plaintiff was not the owner of the suit premises but a tenant and inducted the defendant as a licensee. In the year 1969, the plaintiff had inducted the defendant as the licensee for a period of 10 years with renewable clause. The license was renewed in the year 1981 for 10 years but the renewal took effect from 1979. This would mean the leave and license term was upto 1989. The agreed license fee was Rs.5.25 per sq.ft. per month which rate was fixed without any escalation clause. The rate therefore, was to remain firm for the entire duration of 10 years, i.e., upto 1989.
5 On 12.12.1983, the plaintiff filed an eviction suit being L.E. Suit No.291/338 of 1983 before the Small Causes Court, Mumbai after terminating said leave and license agreement. The said suit for possession was decreed on 27.2.1992 against which the defendant filed an appeal before the appellate bench of the Small Causes Court. While decreeing the suit the trial court also ordered inquiry for determination of mesne profit from the date of filing of the suit for eviction till handing over possession. The appeal came to be dismissed on 30.3.1993.
6 The defendant challenged this by way of writ of petition. The writ petition came to be dismissed and in pursuance of the decree passed by the trial court, the defendant, on 31.7.1993, surrendered to the plaintiff, possession of the suit premises.
7 The plaintiff thereafter filed Misc. Notice No.909 of 1993 in L.E. Suit No.291/338 of 1983. By the said application, the plaintiff made two alternative pleas. It was contended that the plaintiff was entitled to mesne profit on the basis of actual profits earned by the bank from time to time while the bank was in possession of the suit premises from December1983 till 31.7.1993. It was alleged that the bank displayed profits made by it on the notice board in the branch of the bank at the suit premises and the plaintiff was entitled to profits that was made by the defendant while utilizing the suit premises for the aforesaid period. It was also contended that the plaintiff would be entitled to 25% of the net profit which was made by the bank during the aforesaid period and the said 25% of net profit was calculated to be Rs.3,33,75,000/. The plaintiff also claimed interest of Rs.2,22,00,000/upto date of filing of the said application.
8 The alternative claim of the plaintiff was that the plaintiff would otherwise be entitled to the amount that the bank would be required to pay for having obtained an other suitable premises, had the bank vacated the suit premises and was required to obtain such premises during the aforesaid period i.e., from 1983 till 1993. It was also contended by the plaintiff that the plaintiff was an estate broker who had shown willingness to give premises similar to the suit premises to other banks and the defendant bank and it was contended that similar premises were available at the rate of Rs.110 per sq. ft. in the same locality and therefore, the plaintiff will be
