2024:BHC-AS:38537 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8537 OF 2023 Safset Agencies Private Ltd.

a Company registered under the Companies Act, 1956, having its registered office at FGF Centre, Commercial Union House, 3^rd Floor, Wallace Street, Fort, Mumbai – 400 001.

....Petitioner -Versus-

1 Riddhi Rahul Kumar Gosalia Age 66 years, Occ. Investment & Finance, 2 Nyuti Rahul Kumar Gosalia Age 43 years, Occ. Student

3 Dhvani Rahul Kumar Gosalia Age 39 years, Occ. Hair Stylist All being partners of M/s. Gosalia Enterprises, A partnership firm, registered under Partnership Act, 1932 having its office at 105/29, 2^nd Floor, Bombay Samachar Marg, Mumbai – 400 023.

....Respondents ___________

Mr. Aspi Chinoy, Senior Advocate and Mr. G.S. Godbole, Senior Advocate with Mr. Gaurav Mehta i/b Bachubhai Munim & Co. for the Petitioner.

Mr. Vineet Naik, Senior Advocate with Mr. Anand Gandhi, for the Respondents. ___________

______________________________________________________________________

CORAM : SANDEEP V. MARNE, J.

Reserved On : 10 September 2024 Pronounced On : 27 September 2024.

J U D G M E N T :

A. THE CHALLENGE The Petition raises issue of permissibility for Appellate

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Court to direct deposit fair market rent as a pre-condition for grant of stay to the eviction decree in respect of transaction of licence, where the licence fees as well as damages are contractually agreed upon between the parties. The Petition raises challenge to the order dated 5 June 2023 passed by Appellate Bench of Small Causes Court by which execution and operation of the eviction decree is stayed subject to Petitioner depositing the entire decreetal amount at the rate of Rs.6,00,000/- per month from the date of termination of the licence till the date of the decree and compensation at the rate of Rs.17,95,000/- per month from the date of decree till decision of the Appeal. It is Petitioner’s contention that the principle for deposit of fair market rent expounded by the Apex Court in its judgment in Atma Ram Properties (P) Ltd., [______________________________________________________________________] cannot be invoked in respect of eviction decree passed in a suit between licensor and licensee, where contractual amount of licence fees as well as damages/compensation is agreed upon. It is contended that in a suit filed against licensee for recovery

1 Atma Ram Properties (P) Ltd. Versus. Federal Motors (P) Ltd. (2005) 1 SCC 705.

of possession, the possession becomes unlawful not from the date of decree (as in the case of protected tenant) but the same becomes unlawful from the date of termination of license and therefore the Court cannot split the period of unlawful occupation by directing deposit of contractual rent and damages up to the date of decree and fair market rent post the date of the decree.

B. FACTS Considering the limited controversy, which this Court is

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tasked upon to resolve, it is not necessary to record facts in detail. However brief factual background, shorn of unnecessary details, in which the issue arises for determination in the petition is being narrated. Petitioner is a Private Limited Company and is in the business of dealing in art. Respondents claim to be owners of the building named “Bharat Chambers” situated at 22/26, K Dubash Marg, Rampart Row, Fort, Mumbai – 400 023. A Leave and Licence Agreement dated 25 September 2006 came to be executed between Respondents as Licensors and Petitioner as Licensee in respect of the ground, first and second floor of the building Bharat Chambers admeasuring 534.66 square meters equivalent to 5755 square feet carpet area (suit premises). Under the said Agreement, license was granted in respect of the suit premises for a period of 60 months commencing from 25 September 2006 and ending on 24 September

2011 on payment of license fees of Rs.3,00,000/- per month.

According to Petitioner, the real intention between the

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parties was to create tenancy in respect of the suit p