2024:BHC-AS:2658 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 549 OF 2022 Bata India Limited.

A company incorporated under the provisions of Companies Act, 1913, having its registered ofÏce at

27B, 1^st Floor, Camac Street, Kolkata – 700 016, West Bengal.

Through its Authorised Signatory. ...Applicant.

Versus Bindiya Co-operative Housing Society Limited, Having its Address at 51, Hill Road, Bandra (West), Mumbai – 400 050. ...Respondent.

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Mr. Shyam Dewani, Mr. Chirag Chanani, Mr. M. Tahai i/b Dewani Associate for the applicant.

Mr. S. C. Naidu, Mr. Sudesh Kumar Naidu, Mr. Pradeep Kumar, Mr. Abhishek Ingale i/b Arsh Misra for the respondent.

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Coram : Sharmila U. Deshmukh, J.

Reserved on : December 20, 2023.

Pronounced on : January 19, 2024.

JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

2. The revisional jurisdiction of this Court has been invoked challenging the common judgment and order dated 5^th September 2022 passed by the Appellate Court in appeals filed by both the parties against the Judgment dated 22^nd August 2015 passed by the Small Causes Court in Mesne Profits Application No.6 of 2010. Vide the impugned judgment, the Applicant is directed to pay mesne profits at the rate of Rs.1,24,099/- per month for the period from 22nd January 2002 to 31^st March 2012 along with interest at the rate of 6%

p.a.

3. The facts of the case are that the Applicant is a company registered under the Companies Act and was the tenant of Respondent since the year 1958 at monthly rent of ₹200/- in respect of Shop no. 8 situated on the ground floor of Respondent-Co- operative Housing Society. At the time of filing of eviction suit, the monthly rent of the suit premises was Rs 313/-. Vide legal notice dated 11^th September 2001, the tenancy agreement of Applicant was terminated. T. E. Suit No.21/23 of 2002 was instituted by the Respondent before the Small Causes Court seeking eviction of the Applicant and an inquiry for mesne profits under Order XX Rule 12 of CPC which came to be decreed vide judgment and order dated 2^nd August 2005. As against the said judgment and order, Appeal No. 229 of 2005 was filed by the Applicant which came to be dismissed by the Appellate Court by judgment and order dated 28^th July 2010.

4. Civil Revision Application No. 912 of 2010 was preferred before this Court, which was dismissed on 27^th April 2011. SLP Civil 14753 of 2011 filed before the Apex Court came to be dismissed by order dated 16^th September 2011 and the applicant was granted time to hand over possession of the suit premises on or before 31^st March 2012.

5. Mesne Profits Application No. 6 of 2010 was filed in T. E. Suit no. 21/23 of 2002 seeking an inquiry into the mesne profits under Order XX Rule 12 of CPC. The Respondent appointed Mr. Roshan H Namavati, an Architect and registered estate valuer who submitted valuation report dated 18^th May, 2010 on the basis of which the Respondent claimed Rs.2,08,49,018/-as arrears of mesne profits upto 31^st July, 2010 and Rs.2,82,318/- per month as mesne pro August, 2010 till handing over possession alongwith interest @ 6% p.a. The application was resisted by the Applicant contending that the suit building is more than 70 years old and is dilapidated. It was contended that considering the present day position, locality and amenities, rate claimed by the Applicant was highly disproportionate and the instances of the valuer are not comparable.

6. The Small Causes Court by judgment dated 22^nd August 2015 allowed the mesne profits application and directed the applicant to pay Rs. 1,07,040/- per month for the period from 22^nd January 2002 to 31^st March 2012 alongwith interest @ 6% p.a. Both parties challenged the judgment of the Trial Court and vide common judgment dated 5^th September 2022 the appeal filed by the applicant was dismissed and the appeal filed by the respondent was partly allowed increasing the