SUMER CORPORATIONversusVIJAY ANANT GANGAN & ORS.

690                      [2022]REPORTS
               SUPREME COURT    9 S.C.R. 690                  [2022] 9 S.C.R.


A                           SUMER CORPORATION
                                          v.
                       VIJAY ANANT GANGAN & ORS.
                          (Civil Appeal No. 7774 of 2022)
B                             NOVEMBER 09, 2022
                [M. R. SHAH AND M. M. SUNDRESH, JJ.]
             Mesne profit – Compensation for use and occupation of the
      premises by the tenant – Leased property is situated in Worli area of
      Mumbai at a very prominent place – Suit for eviction – Trial court
C
      dismissed suit – Appellate Bench of Small Causes Court, however,
      ordered eviction – Revision before High Court – During pendency
      of revision before High Court, Sumer Corporation applied for
      impleadment and was added as respondent no. 19 – Respondent
      no. 19 was claiming to have right, title and interest in the suit property
D     (lease) pursuant to the deed of conveyance executed in the year
      2008 for a sale consideration of Rs. 5.50 crores – By impugned
      order, while admitting the revision application and while staying
      the eviction decree passed by the Appellate Bench, the High Court
      inter alia directed the original revisionist to deposit Rs. 2,50,000/-
      per month towards compensation as a condition of stay – Original
E
      Respondent no. 19 filed instant appeal – Held: The approach
      adopted by the High Court is not a sound principle of law to form
      the basis for determining the compensation in this case – While
      determining the monthly compensation, High Court considered the
      fair rate of return @ 6.5% annually on the amount for which the
F     appellant purchased the property in the year 2008, i.e., Rs. 5.50
      crores – The aforesaid could not have been the basis while
      determining the monthly compensation – If the approach adopted
      by the High Court is accepted and/or approved, in a given case, it
      may happen that the lessor might have purchased the property forty
      years back and/or long back and if the said approach is considered
G
      and thereafter the monthly compensation is determined, the same
      cannot be said to be a reasonable compensation – Matter remitted
      to High Court for fresh determination of compensation for use and
      occupation of the premises by the tenant.

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                                         690
 SUMER CORPORATION v. VIJAY ANANT GANGAN & ORS.                       691


      Partly allowing the appeal, the Court                           A
       HELD: 1.1 As observed and held by this Court in the case
of Atma Ram Properties (P) Ltd. from the date of the decree of
eviction, the tenant is liable to pay mesne profits or compensation
for use and occupation of the premises at the same rate at which
the landlord would have been able to let out the premises and         B
earn rent if the tenant would have vacated the premises. The
landlord is not bound by the contractual rate of rent effective for
the period preceding the date of the decree. [Para 7.1][697-F-G]
       1.2 In the case of Super Max International Private Limited
and Ors., it is further observed and held that in fixing the amount   C
subject to payment of which the execution of the order/decree is
stayed, the Court would exercise restraint and would not fix any
excessive, fanciful or punitive amount. Therefore, in a revision/
appeal preferred by the tenant, who has suffered an eviction
decree, the appellate/revisional court while staying the eviction
decree can direct the tenant to pay the compensation for use and      D
occupation of the tenancy premises upon the contractual rate of
rent and such compensation for use and occupation of the premises
would be at the same rate at which the landlord would have been
able to let out the premises and earn rent if the tenant would
have vacated the premises. In the present case, the High Court        E
has not done that exercise and has determined the compensation
considering the market value/value at which original respondent
No. 19 acquired the rights of the suit property for a sum of
Rs. 5.50 cores and thereafter, considering estimated return @
6.5% per annum, the High Court has determined/awarded the
compensation for use and occupation of the premises by the tenant     F
@ Rs. 2,50,000/- per month. The aforesaid method adopted by
the High Court while determining the compensation cannot be
accepted. The High Court was required to undertake exercise
and to determine the compensation at the same rate at which the
landlord would have been able to let out the premises and earn        G
rent if the tenant would have vacated the premises. Under the
circumstances, the matter is to be remanded to the High Court
for fresh determination of the compensation for use and occupation
of the premises by the tenant, who has suffered the eviction

                                                                      H
692            SUPREME COURT REPORTS                        [2022] 9 S.C.R.


A     decree, during the pendency and the final disposal of the revision
      application by the High Court. [Paras 7.2, 7.3][697-H; 698-A-E]
            Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.
            (2005) 1 SCC 705 : [2004] 6 Suppl. SCR 843; State of
            Maharashtra and Anr. v. Super Max International
B           Private Limited and Ors. (2009) 9 SCC 772 : [2009] 13
            SCR 801 – relied on.
            2. The impugned judgment and order passed by the High
      Court determining the compensation for the use and occupation
      of the premises by the tenant @ Rs. 2,50,000/- per month is
C     hereby quashed and set aside. [Para 8][698-F]
                             Case Law Reference
      [2004] 6 Suppl. SCR 843           relied on           Para 4.3
      [2009] 13 SCR 801                 relied on           Para 4.5
D           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7774
      of 2022.
             From the Judgment and Order dated 05.11.2020 of the High Court
      of Judicature at Bombay in Civil Revision Application No. 357 of 2017.
            Chander Uday Singh, Sr. Adv., Pratap Venugopal, Ms. Surekha
E     Raman, Akhil Abrahamm Roy, Vijay Valsan, M/S. K J John and Co.,
      Advs. for the Appellant.
            Shekhar Naphade, Siddharth Dave, Sr. Advs., Rahul G. Tanwani,
      Anantha Narayana M.G., Ms. Aishwarya Dash, Farah Hashmi, Prashant
      Pratap, Kumar Mitakshar, M. L. Gopala Krishna, Adith Nair, Vikas
F     Mehta, Mohit Chitale, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned order
G     passed by the High Court of Judicature at Bombay dated 05.11.2020 in
      Civil Revision Application No. 357 of 2017 by which while admitting the
      revision application preferred by the contesting respondents herein –
      original revisionists against the judgment and decree passed by the

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 SUMER CORPORATION v. VIJAY ANANT GANGAN & ORS.                                 693
                 [M. R. SHAH, J.]

Appellate Bench of the Court of Small Causes at Mumbai and while                A
staying the judgment and decree passed by the Appellate Bench, the
High Court has directed the respondent No. 1 - original revisionist to
deposit Rs. 2,50,000/- per month towards the compensation/mesne profit,
the original lessor has preferred the present appeal.
        2. At the outset, it is required to be noted that the property in       B
question is situated in Worli area of Mumbai, which is in the heart of the
city, at a very prominent place. The land on which the superstructure is
constructed by the lessor was leased by the lessee by Lease Deed dated
16.08.1949 for a period of 30 years. The original lessee erected a building
comprising of ground and four upper storeys, known as “Garment House”.
In front of the “Garment House”, there were two chawl-like structures           C
having about 20 tenements. According to the original plaintiffs – lessors,
on or about 22.01.1968, after the death of the original lessor, his legal
heirs entered into a supplementary indenture of lease permitting the original
lessee to demolish the old structures standing on the property and erect
new structures. The duration of the supplementary lease was for a period        D
of 98 years commencing from 01.02.1968.
       2.1 On or about 01.04.1987, the original lessee died. The original
lessee executed a last will and testament creating inter alia a charitable
trust and appointing the appellant herein and one Amritlal Gordhandas
Jajal as executors and trustees. That thereafter in or about 1988, the          E
eviction proceedings were initiated. By judgment and decree dated
25.06.2004, the Trial Court dismissed the suit. The decree was challenged
by the original plaintiffs before the Appellate Bench of the Court of
Small Causes. During the pendency of the appeal, one Sumer Corporation,
claiming to be a transferee of the suit property from the legal heirs of the
original lessors by a registered deed of conveyance, applied for joinder        F
to the appeal. By its judgment and order dated 04.05.2017, the Appellate
Bench of the Small Causes Court allowed the appeal and set aside the
decree passed by the Trial Court and decreed the suit ordering eviction
of the defendants (including the original revisionist).
       2.2 Being aggrieved, the contesting respondents herein – original        G
revisionist has filed the revision application before the High Court. During
the pendency of the Civil Revision Application (CRA), the appellant –
Sumer Corporation applied for impleadment and was added as respondent
No. 19 to the CRA.
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694             SUPREME COURT REPORTS                            [2022] 9 S.C.R.


A           2.3 At this stage, it is required to be noted that the appellant herein
      – Sumer Corporation, respondent No. 19 before the High Court is claiming
      to have right, title and interest in the suit property (lease) pursuant to the
      deed of conveyance executed in the year 2008 for a sale consideration
      of Rs. 5.50 crores.
B            2.4 By the impugned order, while admitting the revision application
      preferred by the original revisionist, who is aggrieved of the decree passed
      by the Appellate Bench of the Small Causes Court and while staying the
      eviction decree passed by the Appellate Bench, the High Court has
      directed the original revisionist to deposit Rs. 2,50,000/- per month towards
      compensation as a condition of stay. The High Court has further directed
C     the original revisionist to furnish a security for the arrears of compensation
      payable from 02.04.2018 and till the date of the impugned order and a
      sum of Rs. 77,55,000/- as by deposit of a fixed deposit receipt of like
      amount endorsed in favour of the Registrar General of the High Court at
      Bombay. The High Court has further directed that the aforesaid
D     compensation shall be payable w.e.f. the date of passing of the order by
      the Court, i.e., on or before 10th day of each succeeding month beginning
      from December 2020.
             2.5 Feeling aggrieved and dissatisfied with the impugned order of
      interim compensation, the original respondent No. 19 has preferred the
E     present appeal.
             3. Shri C.U. Singh, learned Senior Advocate appeared on behalf
      of the appellant and Shri Shekhar Naphade, learned Senior Advocate
      has appeared on behalf of the contesting respondent – original revisionist.
      Shri Siddhartha Dave, learned Senior Advocate has appeared on behalf
F     of some of the respondents, who also claim right, title and interest in the
      property in question.
             4. Shri C.U. Singh, learned Senior Advocate appearing on behalf
      of the appellant has vehemently submitted that in the facts and
      circumstances of the case, the High Court has committed a very serious
G     error in directing the original revisionist to deposit the compensation @
      Rs. 2,50,000/- per month only while staying the judgment and order passed
      by the Appellate Bench.
           4.1 It is vehemently submitted by Shri C.U. Singh, learned Senior
      Advocate appearing on behalf of the appellant that the method adopted
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 SUMER CORPORATION v. VIJAY ANANT GANGAN & ORS.                                695
                 [M. R. SHAH, J.]

by the High Court while determining the monthly compensation is                A
untenable and unsustainable. It is submitted that the High Court has
determined the monthly compensation by considering the amount paid
by the appellant for the purchase of the property in question, i.e.,
Rs. 5.50 crores and considering 6.5% return.
       4.2 It is submitted that market value of the property at which the      B
lessor and/or its subsequent purchaser acquired the property could not
be the basis for fixing the monthly compensation. It is submitted that as
per the settled position of law, the valuation of the property on the date
of decree can be the relevant consideration for the purpose of determining
the monthly compensation.
                                                                               C
       4.3 Relying upon the decision of this Court in the case of Atma
Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd., (2005) 1
SCC 705 (para 19), it is vehemently submitted by Shri C.U. Singh,
learned Senior Advocate appearing on behalf of the appellant that as
observed by this Court while passing an order of stay, the Appellate
Court does have jurisdiction to put the applicant on such reasonable           D
terms as would in its opinion reasonably compensate the decree-holder
for loss occasioned by delay in execution of decree by the grant of stay
order, in the event of the appeal being dismissed. It is further submitted
that as observed by this Court the tenant is liable to pay mesne profits/
compensation for use and occupation of the premises at the same rate           E
at which the landlord would have been able to let out the premises and
earn rent if the tenant would have vacated the premises. The landlord is
not bound by the contractual rate of rent effective for the period preceding
the date of the decree.
        4.4 It is submitted by Shri C.U. Singh, learned Senior Advocate        F
appearing on behalf of the appellant that in the present case, the appellant
produced and relied upon the valuation report of one Mr. Maniyar, who
worked out the monthly compensation on the basis of the value of the
property. It is submitted that as per the Valuation Report of Mr. Maniyar,
the compensation could have been arrived at Rs. 67,76,038/- per month.
It is submitted that, however, ignoring the detailed Valuation Report, of      G
Mr. Maniyar, the High Court has determined a very meagre amount
towards compensation, i.e., Rs. 2,50,000/- per month with respect to the
lands located in the heart of the city - at Worli and which is in the prime
location. It is submitted that therefore, fixing the compensation at
Rs. 2,50,000/- per month with respect to such a huge land situated in the      H
696            SUPREME COURT REPORTS                          [2022] 9 S.C.R.


A     prime location would be unreasonable and therefore the same is liable to
      be interfered with by this Court.
             4.5 Shri C.U. Singh, learned senior counsel appearing on behalf
      of the appellant has submitted that the decision of this Court in the case
      of Atma Ram Properties (P) Ltd. (supra) has been subsequently
B     followed by this Court in the case of State of Maharashtra and Anr.
      Vs. Super Max International Private Limited and Ors., (2009) 9
      SCC 772. It is submitted that in the subsequent decision in the case of
      Super Max International Private Limited and Ors. (supra), this
      Court has again reiterated the law laid down in the case of Atma Ram
      Properties (P) Ltd. (supra).
C
            4.6 Making above submissions, it is prayed to allow the present
      appeal.
             5. Shri Shekhar Naphade, learned Senior Advocate appearing on
      behalf of the respondent No. 1- original revisionist has while opposing
D     the submissions made on behalf of the appellant has submitted that the
      power of the Appellate Court to award the compensation while staying
      the decree of eviction is not disputed. However, he has submitted that
      the compensation, which may be awarded shall be reasonable and may
      not be excessive, even as observed by this Court in the case of Atma
      Ram Properties (P) Ltd. (supra) and Super Max International
E     Private Limited and Ors., (supra). It is submitted that in the present
      case, the superstructure has been constructed by the lessee and only the
      land was leased. It is submitted that the decree has been passed with
      respect to the land and not with respect to the superstructure. It is
      submitted that therefore while fixing the monthly compensation, the
F     aforesaid aspect is required to be borne in mind.
             5.1 It is submitted that in the present case, by giving a detailed
      reasoning, the Hon’ble High Court has discarded and/or not believed the
      valuation report of Mr. Maniyar, relied upon by the appellant. It is
      submitted that while determining compensation @ Rs. 67,76,038/-, the
G     valuer has relied upon and had taken into consideration the Ready
      Reckoner rate of the land with applicable permissible FSI. It is submitted
      that thereafter and after discarding the valuation report relied upon by
      the appellant, considering the fair rate of return on the amount invested
      by the appellant @ 6.5% per annum comes out to Rs. 19,50,000/-.
      Therefore, the Hon’ble High Court has rightly determined the monthly
H     compensation @ Rs. 2,50,000/-, which can be said to be a reasonable
 SUMER CORPORATION v. VIJAY ANANT GANGAN & ORS.                                697
                 [M. R. SHAH, J.]

monthly compensation, which is not required to be interfered with by           A
this Court.
      5.2 Making above submissions, it is prayed to dismiss the present
appeal.
        6. Shri Siddhartha Dave, learned Senior Advocate appearing on
behalf of the proforma respondent, who was also claiming some right,           B
title and interest in the property in question has supported the appellant.
       7. Having heard the learned Senior Advocates appearing on behalf
of the respective parties and having gone though the impugned order
passed by the High Court determining the monthly compensation @
Rs. 2,50,000/-, we are of the opinion that the approach adopted by the         C
High Court is not a sound principle of law to form the basis for determining
the compensation in this case. In the present case, while determining the
monthly compensation, the High Court has considered the fair rate of
return @ 6.5% annually on the amount for which the appellant purchased
the property in the year 2008, i.e., Rs. 5.50 crores. The aforesaid could      D
not have been the basis while determining the monthly compensation. If
the approach adopted by the High Court is accepted and/or approved, in
a given case, it may happen that the lessor might have purchased the
property forty years back and/or long back and if the said approach is
considered and thereafter the monthly compensation is determined, the
same cannot be said to be a reasonable compensation. The aforesaid             E
would be contrary to the law laid down by this Court in the case of
Atma Ram Properties (P) Ltd. (supra) and further reiterated by this
Court in the case of Super Max International Private Limited and
Ors., (supra).
       7.1 As observed and held by this Court in the case of Atma Ram          F
Properties (P) Ltd. (supra), from the date of the decree of eviction,
the tenant is liable to pay mesne profits or compensation for use and
occupation of the premises at the same rate at which the landlord would
have been able to let out the premises and earn rent if the tenant would
have vacated the premises. The landlord is not bound by the contractual        G
rate of rent effective for the period preceding the date of the decree.
      7.2 The decision in the case of Atma Ram Properties (P) Ltd.
(supra) has been subsequently followed by this Court in the case of
Super Max International Private Limited and Ors., (supra). In the
said decision, it is further observed and held that in fixing the amount
                                                                               H
698            SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A     subject to payment of which the execution of the order/decree is stayed,
      the Court would exercise restraint and would not fix any excessive,
      fanciful or punitive amount. Therefore, in a revision/appeal preferred by
      the tenant, who has suffered an eviction decree, the appellate/revisional
      court while staying the eviction decree can direct the tenant to pay the
      compensation for use and occupation of the tenancy premises upon the
B
      contractual rate of rent and such compensation for use and occupation
      of the premises would be at the same rate at which the landlord would
      have been able to let out the premises and earn rent if the tenant would
      have vacated the premises. In the present case, the High Court has not
      done that exercise and has determined the compensation considering
C     the market value / value at which original respondent No. 19 acquired
      the rights of the suit property for a sum of Rs. 5.50 cores and thereafter,
      considering estimated return @ 6.5% per annum, the High Court has
      determined/awarded the compensation for use and occupation of the
      premises by the tenant @ Rs. 2,50,000/- per month. The aforesaid method
      adopted by the High Court while determining the compensation cannot
D
      be accepted. The High Court was required to undertake exercise and to
      determine the compensation at the same rate at which the landlord would
      have been able to let out the premises and earn rent if the tenant would
      have vacated the premises.
            7.3 Under the circumstances, the matter is to be remanded to the
E     High Court for fresh determination of the compensation for use and
      occupation of the premises by the tenant, who has suffered the eviction
      decree, during the pendency and the final disposal of the revision
      application by the High Court.
             8. In view of the above and for the reasons stated above, the
F     present appeal succeeds in part. The impugned judgment and order passed
      by the High Court determining the compensation for the use and
      occupation of the premises by the tenant @ Rs. 2,50,000/- per month is
      hereby quashed and set aside. The matter is remitted back to the High
      Court to determine the compensation for the use and occupation of the
G     premises in question by the tenant/lessee afresh and taking into
      consideration the observations made hereinabove. For that purpose, the
      parties may be permitted to lead the evidence on the rate of rent that
      would have been earned by the landlord/lessor, if the lessor would have
      been able to let out the premises and earn rent if the tenant would have
      vacated the premises. The aforesaid exercise be completed within a
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 SUMER CORPORATION v. VIJAY ANANT GANGAN & ORS.                                 699
                 [M. R. SHAH, J.]

period of six months from the date of the receipt of the present order.         A
Till a fresh decision on remand is taken by the High Court, by way of
interim arrangement and subject to further decision that may be taken
by the High Court on remand, we direct the respondent No. 1 to deposit
the compensation at-least @ Rs. 2,50,000/- per month from the date of
passing of the eviction decree, however, as observed hereinabove, the
                                                                                B
same shall be subject to the final decision / determination of compensation
on remand.
      Present appeal is accordingly partly allowed to the aforesaid
extent. No costs.
                                                                                C
Devika Gujral                                          Appeal partly allowed.




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