04 May 2121

The petitioner/plaintiff would have the option of pursuing compensation and enforcing the mesne profits/compensation decision against either the BPCL or the obstructionist - Bombay High Court

Case : Kumari Asha Parekh and Ors. v. M/s. Madhav Motors Stores Pvt. Ltd. and Anr. Writ Petition No. 2398 of 2020 With Civil Revision Application No. 430 of 2018

Court : Bombay High Court

Bench : Justice C. V. Bhadang

Decided on : 04 May 2121

The Relevant Statutes

Companies Act, 1956

Maharashtra Public Trust Act, 1950

Article 129 of the Limitation Act, 1963

Order XXI Rule 97, 98, 99, 100, 101, 102, 103, 97(1) of Code of Civil Procedure, 1908

Brief Facts & Procedural History

1. The plaintiff SAR had leased the suit property to Burmah Shell under a contract of the lease to install and operate a petrol pump for dispensing fuel and other petroleum products. As previously indicated, BPCL is the successor to Burmah Shell, and the tenancy rights have been transferred to BPCL. The lease had come to an end. BPCL, on the other hand, remained a tenant at sufferance in possession of the suit property.

2. SAR (plaintiff) appears to have terminated BPCL's tenancy rights via a notice requiring BPCL to take up vacant and peaceful possession of the suit property, which notice was ignored.

3. The trustees of SAR then filed an eviction complaint in Mumbai's Small Causes Court (Bandra Branch) for eviction, based on, among other things, a genuine requirement. It's worth noting that BPCL was the only defendant in the case. The matter was eventually decreed, but BPCL appealed to the Appellate Bench of the Small Causes Court. BPCL appears to have asked for permission to drop the appeal, which was then rejected as withdrawn. As a result, the eviction order has become final.

4. For the determination of the mesne profits, the plaintiff filed Misc. Notice No. 185 of 2005. According to the complainant, the compensation was Rs.94,300/- per month, based on the valuation.

5. However, in a letter to the plaintiff, BPCL proposed that the plaintiff renounce control of the suit property in exchange for the withdrawal of the notice for mesne profits. It appears that BPCL also sent a letter to the First Respondent (obstructionist) on September 26, 2005, instructing it to remove its belongings from the suit property, citing that the licence had been revoked by the explosive department because the site did not meet the explosive department's minimum safety distance requirements. It was also revealed that BPCL has chosen to provide the plaintiff with vacant ownership of the suit property. The first respondent (obstructionist) refused to follow its principal BPCL's directions. The obstructionist filed a RAD Suit, claiming legal protection because it was a "deemed tenant" of the suit property. That lawsuit is still in the works.

6. In the RAD Suit, the First Respondent did not get any interim orders. The first respondent, on the other hand, as opposed to the SAR's decree being carried out (plaintiff). Obstructionist Notice was submitted by the plaintiff/decree-holder. The first Respondent applied (Exh.4) seeking dismissal of the obstructionist notice based on the statute of limitations and the fact that it was a "deemed tenant" of the suit property.

7. By order, the learned Trial Court refused to dismiss the obstructionist notice, stating that it was filed within the time. The first respondent disputed this in a revision motion, which the Appellate Bench dismissed. The abovementioned order has been contested by the first Respondent.

8. Meanwhile, BPCL appealed the learned Trial Court's judgement and order finding mesne profits in Misc. Application, which was upheld by the Appellate Bench of the Small Causes Court in a judgement and order. The second Respondent, BPCL, challenged the above order in CRA No. before the Honourable High Court of Judicature at Bombay, but it was dismissed and no further action has been taken. As a result, the order for BPCL to pay mesne earnings has also been finalised.

9. The Petitioner (plaintiff) filed an execution application, requesting that the initial defendant, BPCL, deposit the amount ordered until possession is handed over.

10. The second respondent, BPCL, filed an application (Exh.8) seeking to deposit Rs.65,64,000/- towards mesne earnings, plus Rs.46,82,274/- in interest. According to BPCL, it was not obligated to pay mesne profits since it was ready and willing to surrender possession of the suit property and, as a result, was not in occupancy of the same.

11. The second Respondent, BPCL, made a deposit in the Trial Court for mesne earnings of Rs.1,12,46,274/-, which was withdrawn by the Petitioner (original plaintiff).

12. The Petitioner applied (Exh.12) in the obstructionist notice No. 12 of 2010 seeking a direction to the first Respondent (obstructionist) to deposit interim compensation at the rate of Rs.54,700/- per month (at the same rate as mesne profits are granted against BPCL) from August 1, 2010, to the date of filing of the application, and to continue to deposit the same. The Trial Court granted the motion Exh.12, directing the first Respondent to deposit the interim compensation/mesne earnings as sought, based on the Supreme Court's decision in Marshall Sons & Co. (I) Ltd. v/s Sahi Oretrans (P) Ltd and Others (1999) 2 SCC 325.

13. In a revision application, the first Respondent contested the abovementioned order before the Appellate Bench. By a verdict, the Appellate Bench has granted the revision application. As a result, Exh.12's application has been refused. In Writ Petition No. 2398 of 2020, this order is being challenged.

The Issue(s) of the Case

Whether order dated 20 January 2020 and application Exh.12 stands rejected valid?

The Observations of the Court/Commission

1. Referring to the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and Anr., (1997) 3 SCC 694, in light of the Honourable Supreme Court's ruling in the matter, the objection based on limitation cannot be supported in the present case.

2. Referring to the case of Ram Chandra Verma V/s. Manmal Singhi & Anr. AIR 1983 Sikkim 1, the obstructionist's objection to the decree's execution, which he made by filing an application claiming that he was not bound by the decree, was dismissed by the executing Court without any investigation into whether the obstructionist was bound by the decree or not. As can be seen, the case was decided based on its facts. In these circumstances, the High Court concluded that the executing court should have stayed its hands in the matter, allowing the decree-holder to continue under Rule 97 or in any other way he saw proper.

3. Referring to the case of Smt. Tahera Sayeed Vs. M. Shanmugam and Others AIR 1987 Andhra Pradesh 206, the Andhra Pradesh High Court ruled that when a third party who is not bound by the decree approaches the Court to protect his independent right, title, or interest in the property before he is dispossessed of it and files an application under Order XXI Rule 97 of the Civil Procedure Code, it must be treated as an intimation to the Court and as a caveat to the decree-holder or purchaser, and the Court must comply to adjudicate the same under Rule 98 or Rule 101 of Order XXI of Code of Civil Procedure, 1908. The Court decided that the obstructionist's application can be viewed as an intimation that must be adjudicated in line with Rule 98 of Order XXI of the Code of Civil Procedure, 1908.

4. Referring to the case of Ubaldino Oliveira Vs. Sadanand Ladu Borkar, since deceased represented by LRs. 1996(5) Bom. C.R. 425, the petitioner was the obstructionist, whose application under Order XXI Rule 97 obstructing the decree's execution was dismissed by the lower courts without addressing his independent right to the suit premises because the application at the obstructionist's request was not maintainable under the Code of Civil Procedure, 1908 Order XXI Rule 97. In brief, the executing Court ruled that in such a circumstance, only the decree-holder in possession can petition for removal of an obstacle to the decree's execution and that the obstructionist's remedy would be to seek restoration of possession after he was dispossessed under Rule 99. Honourable High Court of Judicature at Bombay determined that the obstructionist's application could not have been dismissed on a technicality and that it should have been decided under Rule 98 and subsequent rules.

5. Honourable High Court of Judicature at Bombay observes that the legal position that emerges is that obstruction, including an attempt to obstruct or oppose the execution of the decree by a person/stranger because he is not bound by the decree, can be considered, along with the specific claim by the decree-holder for the execution of the decree, after such obstruction/resistance has been removed under Order XXI Rule 97 of the Code of Civil Procedure, 1908. It is vital to emphasise, at the risk of repetition, that the applicant's claim as a foreigner that he is not bound by the decree has not been decided on the merits by the executing Court. From every perspective, the rejection of the limitation objection is without flaw. As a result, the revision request is likely to be denied.

6. Referring to the case of Marshall Sons & Co. (I) Ltd. v/s Sahi Oretrans (P) Ltd and Others (1999) 2 SCC 325. as well as in the case of Shri Dnyandev Kshirsagar Vs. M/s. Pyramid Corporation and Anr in Writ Petition No.10003/2015 decided on 16/11/2015, the decree-holder had secured an eviction order, and despite this fact, the obstructionist was ordered to pay reparation / mesne profits. Thus, in my opinion, the Appellate Bench erred in refusing to rely on the Marshall Sons & Co. (I) Ltd. v/s Sahi Oretrans (P) Ltd and Others (1999) 2 SCC 325. ruling. Even though the respondent obstructionist was not a party to the petitioner's mesne profits application, the Appellate Bench upheld the lower courts' decision that the respondent/obstructionist is not obliged to pay the mesne profits. It is important to highlight that the Court's primary concern in those mesne profits proceedings against the original defendant (BPCL) was BPCL's culpability.

7. In those processes, the courts had no reason to assess the obstructionist's independent duty to pay the mesne profits. The obstructor was not even present throughout the sessions. It's worth noting that the Courts in those proceedings were looking into BPCL's attempt to free itself of accountability for mesne profits by claiming that the obstructionist was accountable for the same. The aforementioned defence was unfavourable. True, BPCL has been ordered to pay mesne profits till possession is delivered. However, as previously stated, despite the BPCL's desire to deliver possession, the decree is not being carried out due to obstruction by the obstructionist/respondent. It is important to note that the BPCL claims it is not responsible to pay the mesne profits from 1/8/2010 because possession cannot be delivered due to the respondent's impediment.

8. Honourable High Court of Judicature at Bombay also observes that when it comes to the petitioner receiving a two-fold advantage, the petitioner will have to pursue actual recovery of the mesne profit from either BPCL or the obstructionist. However, this would not influence the obstructionist's responsibility to pay the compensation. The petitioner/plaintiff would have the option of pursuing compensation and enforcing the mesne profits/compensation decision against either the BPCL or the obstructionist.

The Decision Held by the Court/Commission

Honourable High Court of Judicature at Bombay held 

1. The Civil Revision Application No.430/2018 is hereby dismissed.

2. This Court has made it apparent that it has not concluded on the merits of the argument submitted.

3. The Writ Petition No.2398/2020 is hereby allowed.

4. The Appellate Bench of the Small Causes Court's judgement and decree of January 20, 2020, is hereby set aside.

5. As a result, the Small Causes Court's order dated 2/2/2019 is upheld.

6. It is said that the petitioner/decree-holder has the choice of enforcing the mesne profits order against BPCL or the respondent no.1/obstructionist.

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