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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

FIRST APPEAL NO.400/2011

1.State of Maharashtra through

Collector, Nagpur and Ex-officio,

Secretary, Housing and Special Assistance

Department, Government of Maharashtra.

2.The Deputy Collector and Competent

Authority, U.L.C., Nagpur.

3.The Deputy Commissioner,

Sales Tax, Eastern Division,

Kamdar Bhavan, Ramdaspeth,

Nagpur.

... APPELLANTS

...VERSUS…

1.Smt. Usha wd/o Pravin Kamdar,

Aged about 56 years,

Occupation: Housewife,

2.Smt. Meghna w/o Anirudh Joshi,

Aged about 32 years,

Occupation: Business,

3.Smt. Harshada w/o Roopak Puni,

Aged about 30 years,

Occupation: Household,

All R/o. 504, Neelgagan Hampyard Road,

Dhantoli, Nagpur through their power of

Attorney Holder Shri Aniruddha Joshi

...NON-APPLICANTS

---------------------------------------------------------------------------------------------

Shri Akshay Naik, Senior Advocate a/w Mrs. D.I. Charlewar, AGP for appellants

Shri F. Mirza, Senior Advocate a/w Shri V.A. Kilor with Shri A.P. Bhuibhar, Advocate for

respondents

--------------------------------------------------------------------------------------------- 2026:BHC-NAG:2712

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CORAM : PRAVIN S. PATIL , J.

DATE OF RESERVING THE JUDGMENT: 29.01.2026

DATE OF PRONOUNCEMENT OF JUDGMENT: 16.02 .2026

JUDGMENT

. Heard.

2. By way of present appeal, the challenge is to the

judgment and order dated 30.11.2020 passed by Civil Judge Senior

Division, in Mesne Profit Case No.04/2003, whereby the learned

Court has directed the present appellants to jointly and severally

pay an amount of Rs.1,02,72,112/- to the present respondent.

3. In brief the facts of the present case are as under:

One Pravin Jethalal Kamdar was the owner of the property

bearing Nazul plot No.120 situated in Ward No. 73 Ramdaspeth,

Nagpur admeasuring 1656, sq.mtrs. having total built up area of

about 6000 sq.ft. He has filed Special Civil Suit No.569/1998

against the present appellants before the Civil Court seeking a

declaration that sale-deed obtained by the appellants by purporting

to exercise a right of preemption under the provisions of the Urban

Land (Ceiling & Regulation) Act, 1976 (in short ‘the said Act’) be

declared as null and void and also prayed for a decree of possession

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of the suit property. In the same suit, the specific submission was

made that he was always ready and willing to refund the amount of

Rs.2,60,000/- to the appellants and, therefore, according to him,

the possession taken by them is illegal and hence, further seeks

relief to direct the inquiry into the mesne profit for determining the

damages caused to him on account of illegal occupation and

possession over the property of the appellants.

4. The suit filed by Pravin Kamdar was dismissed by the

Civil Court by its judgment and decree dated 31.01.1992. Against

the said judgment and decree, he has preferred First Appeal

No.366/1992 before this Court. This Court allowed the appeal as

per its judgment and order dated 26.04.1995. In paragraph No.34

of the judgment, this Court observed as under:

“a)The decree for possession of the suit property, as

described in the Schedule which is a part and parcel of

the plaint, is passed against the defendants on the

condition that within 2 months from the date of this

order the plaintiff shall deposit in the trial court an

amount of Rs.2,60,000/- which amount shall be paid to

the defendants.

b) Claim for damages in the amount of Rs.

7,20,000/- is rejected.

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c) On an application being made under Order 20

Rule 12 C.P.C., there shall be an inquiry into the future

mesne profits from the date of deposit of the amount of

Rs.2,60,000/- by the plaintiff in the trial Court till the

date the possession is delivered to him if within one

week from the date of the deposit of the consideration of

Rs.2,60,000/- in the trial Court by the plaintiff the

possession of the suit property is not restored to him by

the defendants.

d) In the circumstances, however, the costs shall be

as incurred by the parties.”

5. As per the directions of this Court, he has deposited an

amount of Rs.2,60,000/- on 23.06.1995. As such, considering the

said facts, it was obligatory for the appellants to deliver the

possession of the property within a period of one week from the

date of deposit of the amount. However, the possession was not

delivered to the present appellants.

6. According to appellant, against the judgment of this

Court, they have preferred the Civil Appeal No.7291/1995 before

the Hon’ble Supreme Court of India. Before the Hon’ble Supreme

Court, earlier, ex-parte stay was granted in the matter. However,

after appearance of the parties and pointing out the entire factual

as well as legal position, the Hon’ble Supreme Court by its

judgment dated 07.03.2000 has dismissed the petition.

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7. After the judgment of the Hon’ble Supreme Court, the

present appellants have handed over the possession of the suit

property to the respondents on 20.04.2000. The present

respondents are the legal representatives of Pravin Kamdar. As

such, they received the possession of the suit property on

07.03.2000 after deposit of amount of Rs.2,60,000/- on

23.06.1995.

8. In the background of above said factual position, as

liberty was granted by this Court, the respondents have filed the

proceedings for inquiry of mesne profit vide Mesne Profit Case

No.4/2003. Learned Civil Court after conducting inquiry in the

matter by its judgment dated 05.07.2007 decreed the application

and directed the present appellants to jointly and severally pay the

amount of Rs.1,02,72,112/- to the respondents.

9. The said judgment of the Trial Court was challenged

before this Court in First Appeal No.1462/2009. The said appeal

was disposed of by this Court by judgment dated 19.12.2009,

whereby the present respondents have filed the pursis by giving

concession to appellants that if the appellants deposit 50% of the

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decretal amount as per the judgment and decree dated 05.07.2007

in Misc. Petition No.04/2003 and permitted them to withdraw the

same, then they have no objection to remit back the case to trial

Court and grant permission to the appellants to cross-examine the

respondents and to adduce evidence if any, within a time-bound

period of three months. As the concession has been given by the

present respondents in the said appeal, the appeal was allowed and

the matter was remanded back to the Trial Court subject to deposit

of 50% of decretal amount.

10. After reminding the matter to the Civil Court, the Civil

Court has granted an opportunity of hearing to the appellants and

also permitted to cross-examine the witnesses as directed by this

Court. Thereafter, considering the submission of both the parties

and evidence adduced on record by its judgment and order dated

30.11.2010, allowed the application and directed the present

appellants to jointly and severally pay the amount of

Rs.1,02,72,112/- with future interest at the rate of 9% per annum

from the date of possession till its realisation.

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11. The said judgment of the Trial Court is now challenged

by way of present appeal in the matter. In the present appeal, the

appellants have raised three grounds to challenge the judgment of

the Civil Court. The first contention of the appellants is that there

was no intimation at any point of time from the respondents about

the deposit of Rs.2,60,000/- as directed by this Court. As such, they

were not aware about the same. It is first time came to their

knowledge while executing the possession receipt. Therefore, as

they were not intimated about the deposit of Rs.2,60,000/-, there

was no reason for them to handover the possession immediately to

respondents.

12. The second contention raised by the appellants is that

after the judgment delivered by this Court, on 26.04.1995, the

prayer was made to continue the stay for further period of one

month from the date of order. The same was continued and

thereafter they have preferred the appeal before the Hon’ble

Supreme Court. The Hon’ble Supreme Court of India initially

granted a stay to the order of this Court and later on by its

judgment dated 07.03.2000 dismissed the appeal. Immediately,

after the dismissal of the appeal, within a period of two months,

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they have delivered the possession to the respondents vide

possession receipt dated 20.04.2000. Hence, according to them,

there is no delay on their part to comply the directions given by this

Court by its judgment dated 26.04.1995.

13. The third contention, which is raised by the appellants

is that as per the provisions of Section 34 of the Civil Procedure

Code, if there is no commercial transaction between the parties, the

rate of interest on such amount should be at the rate of 6% per

annum, however, in the present case, the rate of interest, which is

prescribed as 9% per annum is not justified in terms of the

provision of the Civil Procedure Code.

14. Per contra, learned Counsel appearing for respondents

have strongly opposed the present application. It is pointed out by

the respondents that initially when the trial Court has allowed the

application under mesne profit by its judgment dated 05.07.2007,

the appeal was preferred before this Court. In the said appeal, in

view of the concession given by the present respondents, the matter

was remanded back to the trial Court. At that time, the respondents

have agreed to deposit 50% of the decretal amount and nowhere

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raised the objections stating that no amount is required to be

deposited as they have delivered the possession within time.

15. It is further pointed out that the present appellant then

seeks application for modification of the order passed by this Court

dated 19.12.2009 by moving Civil Application No.720/2010. In the

said application, the same submission was made which is made in

the present appeal that as the appellants have challenged the

judgment and order of this Court before the Hon’ble Supreme Court

and stay was operating in the said appeal, the possession of the

appellants cannot be termed as illegal and inquiry into the mesne

profit, therefore, impermissible. This Court, while deciding with the

said application, has observed that when the inquiry into the

amount of mesne profit was not stayed, parties were not just free

but were bound to proceed with the inquiry into the mesne profit

and hence, the grounds urged for modification of the order was

permitted only to extend, the present respondents are allowed to

withdraw 25% of decretal amount and furnishing an undertaking in

the event of adverse decision in the application as to inquiry on

mesne profit passed by the trial Court. As such, it is the submission

of the present respondents that once this issue was raised and

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decided by this Court, now the same issue cannot be raised in the

present appeal.

16. It is the submission of respondents in the matter that

this Court has passed conditional order in the matter. If

respondents/plaintiffs would not have deposited the amount, there

was no reason for appellants to approach before the Hon’ble

Supreme Court of India. Hence, there submission to the effect that

respondents did not intimate about deposit of amount cannot be

accepted in the facts and circumstances of the matter. So also, the

appeal before the Hon’ble Supreme Court was filed after expiry of

extension of period of one month by this Court. Hence, on all

counts, it is not established on record that appellants were not

aware about the deposit of amount of Rs.2,60,000/- by

respondents.

17. In respect of interest awarded by the learned trial

Court at the rate of 9%, it is the submission of the present

respondents that through the evidence, it was established on record

by them that the property, which is in dispute was located within a

commercial place. It is also pointed out that considering the

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locality, the trial Court has considered the amount of mesne profit

in the matter. Hence, the rate of interest awarded by the learned

trial Court cannot be said to be prima facie, illegal in the facts and

circumstances of the case. Hence, on the count of this submission, it

is prayed that the present appeal being devoid of merit and same is

liable to be dismissed.

18. In light of the submissions of both the parties made

before this Court, I have perused the entire record. After perusal of

the record, prima facie, it is clear that this Court while delivering

the judgment dated 26.04.1995 in First Appeal No.366/1992,

which is reproduced above, particularly clause (a) specifically states

that the decree of possession of suit property was granted subject to

conditions that within two months from the date of the judgment,

the original plaintiffs/respondents shall deposit the amount of

Rs.2,60,000/- in the trial Court.

19. Therefore, considering these facts, in my opinion, if the

original plaintiffs/respondents would have failed to deposit the said

amount in the trial Court, there was no need for the appellants to

prefer the appeal before the Hon’ble Supreme Court. As such, only

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because the amount has been deposited before the trial Court, they

have preferred the appeal before the Hon’ble Supreme Court of

India. So also, the appellants failed to point out from the judgment

of the Hon’ble Supreme Court, that ground has been raised by the

appellants that the original plaintiffs/respondents failed to deposit

the amount within two months and on that count, they obtained

the stay or get decided the appeal on its own merits. Hence, this

submission which is made by the appellants is prima facie do not

seem to be trustworthy in the matter.

20. Second contention of the present appellants is that

during the pendency of appeal before the Hon’ble Supreme Court,

the stay was operating to the order of this Court and, therefore,

there was no reason for them to hand over the possession to the

original plaintiffs/respondents in the matter. However, after

scrutiny of record, it is seen that appeal was filed before the Hon’ble

Supreme Court on 14.08.1995. As per the judgment of this Court

dated 26.04.1995, the period of stay was in operation till

26.05.1995. The period of deposit of amount to respondent was up

to 26.06.1995. As such, it is clear that appeal before the Hon’ble

Supreme Court of India was filed on 14.08.1995. Hence, in absence

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of clarification of all these material aspects, submission of

appellants cannot be accepted in the matter.

21. In my opinion, the order of this Court dated

26.04.1995, being a conditional one and the respondents have

complied that condition, it is obligatory on the part of the

appellants to handover the possession to the respondents

immediately after the order passed by this Court in the matter.

Merely, obtaining of stay after expiry of given period that too

without any clarification cannot be a reason to retain the possession

from year 1995 to 2000.

22. It is further pertinent to note that in the present matter

after the decision of the trial Court on the application for mesne

profit, in earlier round of litigation, the matter was came up before

this Court vide First Appeal No.1462/2009. In the said proceedings,

after remanding back the matter, the present appellants have

moved the application for modification of the order. The same was

decided by this Court on 13.04.2010 and the same ground, which is

raised in the present appeal, was rejected and only the modification

was granted that instead of 50% of decretal amount, the

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respondents shall permitted to withdraw 25% of decretal amount.

Hence, once this Court has already rejected the contention of the

appellants, the same cannot be considered afresh under the same

set of facts and circumstances of the matter.

23. In respect of the rate of interest, the submission of the

appellants seems to be justified in the matter. Section 34 of the Civil

Procedure Code has provided the rate of interest at the rate of 6%

and only in the commercial transaction, the Court is empowered to

grant the interest at higher rate. In support of this submission, the

appellants have rightly relied upon the judgment of the Hon’ble

Supreme Court in case of Ramnik Vallabhdas Madhvani and others

Vs. Taraben Pravinlal Madhvani reported in (2004) 1 SCC 497,

wherein in paragraph No.15 observed as under:

“15. Coming to the legal aspect of the amendment of

plaint allowed in the present case by the High Court, it is

to be noted that Section 34 of the Code of Civil

Procedure deals with the question of award of interest.

Section 34 CPC, as it stood before amendment in

February 1977, deals with the question of interest in

three stages. First is, interest prior to the date of

institution of suit, the second stage is interest from the

date of institution of suit till the date of decree and the

third stage is from the date of decree till realisation of

the decretal amount. About the first stage, Section 34

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does not say anything while about the second stage it

says that the interest to be awarded should be as

considered reasonable by the court. About the third

stage i.e. from the date of decree till realisation, the

power of the court to award interest is circumscribed i.e.

it cannot be more than 6% per annum.”

24. Hence, considering Section 34 of the Civil Procedure

Code and judgment, which appellants have relied upon the rate of

interest at the rate 6%, would have been awarded by the trial Court

in the present matter. It is further pertinent to note that there are

no reasons recorded by the learned trial Court while awarding the

interest at the rate of 9%, particularly when, the mandate under

Section 34 of the Civil Procedure Code is that rate of interest should

be at the rate of 6% per annum.

25. It is also pertinent to note that initially when the

judgment came to be passed ex-parte in the matter, the learned

Trial Court did not award any interest, however, after remanding

back the matter by this Court, by the impugned order, learned trial

Court has awarded the compensation at the rate of 9% that too

without any reasons. Hence, to that extent, the modification to the

judgment and order of the trial Court is necessary in the matter.

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26. Hence, I proceed to pass the following order:

ORDER

i) The First Appeal is partly allowed.

ii) The judgment and order dated 30.11.2010 passed in Mesne

Profit Case No.04/2003 is modified to the extent that rate of

interest be charged at the rate of 6% per annum on

Rs.1,02,72,112/- for a period from 23.06.1995 to 20.04.2000.

iii) Rest of the judgment and order is hereby confirmed.

27. The appeal stands disposed of. No order as to the costs.

(PRAVIN S. PATIL, J.)

R.S. Sahare