Partly allowed

Hindustan Petroleum Corporation Limited v. Pallikonda Shetty (Died)

Telangana HC9 Nov 2023CRP/3237/2014

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court modified the computation of mesne profits determined by the Advocate-Commissioner. The Court reduced the annual enhancement rate from 20% to 15% for subsequent periods and granted interest on arrears at 6% per annum.

What did the court decide?

Mesne profits revised by reducing the enhancement rate from 20% to 15% for subsequent slabs; interest on arrears fixed at 6% per annum.

Hindustan Petroleum Corporation Limited Vs… — Execution and Attachment | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY,THE NINTH DAY OF NOVEMBER TWO THOUSAND AND TWENWTHREE

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PRESENT

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THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI

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CIVIL REVISION PETITION NO: 3237 OF 2014

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Petition Under section 115 of CPC against the Order dated 09.O4.2O14 l.A.No. 906 of 2005 in O.S.No. 68 of 1995 on the file of the Court of the Senior Civil Judge Nizamabad.

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Between:

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Hindustan Petroleum Corporation Limited, 17, Jamshedji Tata Road, Mumbai, rep by its Chairman, Mumbai.

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Chief Regional Manager, Hindustan Petroleum Corporation Limited, '130/1, Sarojinideiri Road, Secunderabad. ...PETITIONERS/RESPONDENTS

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AND

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1 . Pallikonda Shetty (Died), S/ o. Late P.Shankaraiah, Occ Business, Rl/o H.No.5-7-62711 5, Khaleelwadi, Nizamabad.

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P Vidyalatha (Died), Wo Pallikonda Shetty, Occ Business, R/o H.No.5-7627 I 1 5, Khaleelwadi, Nizamabad.

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Pallikonda Rajender, S/o. Pallikonda Shetty, Rl/o. 1-1-65t4, Vinayak Nagar, Road No. 10, Near Liftle Scholars School, Nizamabad, North Mahdal Nizamabad.

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Pallikonda Ramu, S/o. Pallikonda Shetty, R|/o. 1-1-6514, Vinayak Nagar, Road No.^'10, Near Little Scholars School, Nizamabad, North Mandal Nizamabad.

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Pallikonda Raghuveer, S/o. Pallikonda Shetty, Fl/o. 1-1-6514, Vinayak Nagar, Road No. 10, Near Little Scholars School, Nizamabad, North Mandal Nizamabad.

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(RR 3 to_ 5 q1e brought on record as LRs of the deceased RR 1, 2 as per c.o. dt. 24.11.2O22 in lA No. 4 ot 2022.1 ...RESPONDENTS

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CRPMP. NO:5261 OF2014

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Petition under Section 148 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the time granted by this Hon'ble Court on 19logl2j14 in CRp.Mp.no. 4435 of 2014 in CRP.no. 3237 of 2O14 by 3 months for compliance.

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CRPMP. NO:4435 OF 20'14

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Petition under section^{'151CPC praying that in the circumstances statedin} the affidavit filedⁱⁿ support^{of the petition, the High court rnay be pleased to} suspend the order dated:^{09.O4.2O14 passed inl.r. No.906/2005in} OS.No.68/1995 on the^{file of the Senior CivilJudge,Nizamabad.}

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CR PMP. NO:^2'133 OF²⁰¹⁶

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Between:

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1 Pallikonda Shetty (Died), S/ o. Late^{P.Shankaraiah, Occ Bttsiness'Rl/o} H.No.5-7-627l1 5, Khaleelwadi,^Nizamabad.

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2 P Vidyalatha (Died), Wo Pallikonda^{Shetty,O-cc Business, R/o H.No-5-7--} 627l1b,Khaldelwa6i, Nizamabad'..PETITIONERS/RESPoNDENTS

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AND

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'l . Hindustan Petroleum Corporation Limited, 17, Jamshedji Tata Road, Mumbai, rep by its Chairman, Mumbai.

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Chief Regional Manager,^{Hindustan Petroleum CorporationL-!Tl!99--1.99fi'} "RESPONDENTS

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Sarojinideiri Road, Sedunderabad

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Petition under section 151^{CPC praying that in the circumstances statedin} the affidavit filed in^{supportof the petition,the High court may be pleased vacate} the interim order dated^{19.09.2014 in cRP No.323712014granted suspensionof} the order in lA No.906/2005ⁱⁿ os^{No.68/1995on the file of lsenior civil Judge,} Nizamabad.

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lA NO: 3 OF 2022

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Petition under order 22 Rule I^{CPCprayingthat in the circumstances} stated in the affidavit^filed in^{supportof the petition,the High Court may be} pleased to set aside the abatement caused^{due to'the death of the Respondents1} and 2 in CRP.NO.3237^{of 2O14-}

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lA NO:4 OF 2022

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Petition under Order 22 Rule 9^{CPCpraying that in the circumstances} stated in the affidavit filed in^{supportof the petition, the High Court may be} pleased to bring the^proposed Respondents 3^to 5^{he'ein as the legal} representatives of the deceased^{Respondents 1 and 2 in abovecRP.No.3237 of} 2014.

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Counsel for the Petitioners : SRl. M.^{RAVINDRANATH REDDY}

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Counsel for the Respondents : SRI^{T. V. KALYANSINGH}

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The Court made the following: ORDER

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HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI CwIL REVISION PETITION No. 3237 of 2OL4

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ORDER:

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Assailing the orders of the learned Senior Civil Judge, Nizamabad, dated 09.04.2014 in I.A. No. 9O6 of 2005 in O.S. No. 68 of 1995, the present revision is hled by the defendantsHPCL. By the impugned order, the learned Senior Civil Judge allowed the application hled by the plaintiffs under Order 20 Rule 12 CPC determining the mesne prohts in respect of the suit schedule property basing on the Advocate-Commissioner appointed for the said purpose.

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For the sake of convenience, hereinafter, the parties will be referred to as per their array in the suit.

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The facts of the case are that, the suit hled by the plaintiffs in O.S. No. 68 of 1995 for recovery of possession of the suit schedule property and mesne profits was decreed on 02.Ol.2OO3. Thereagainst, the appeal and the SLP preferred by the defendants stood dismissed and thus the proceedings attained finality and the plaintiffs were handed over vacant possession of the property on 05.08.2004. Seeking determination of mesne profits from O1.0i.1993 to 05.O8.2OO4, the plaintiffs filed the impugned application seeking

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appointment of Advocate Commissioner. The said application was opposed by the defendants Company contending that as the vacant land was taken on lease on a monthly rent of Rs.aOO/-, the said amount would be the amount 1.hat has to be paid for the entire land towards mesne profits. After hearing both the parties, the trial Court has appointed [he AdvocateCommissioner to ascertain mesne prohts in respt:ct of the suit schedule property for the specified period. After due enquiry, the Advocate-Commissioner filed his report asc:ertaining the mesne prof-rts as under:-

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(i) Rs.25l- per sq.yd. from O1.O1.1993 to 31.i'2.1995;

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(ii) Rs.30/- per sq.yds. from O1.01.1996 to 31.12.1998; (iii) Rs.36/- per sq.yd. from 01.O1.1999 to 3l.l'.2.'2O01; &

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(iv) Rs.43.20 ps. per sq.yd. from Ol.Ol.2OO2 to C5.08.2OO4.

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Both the parties were heard on the AdvocateCommissioner report. P.Ws. I and 2 were examin€d on behalf of the plaintiffs and Exs.A. 1 to A. 10 were marked. On behalf of defendants, R.W. 1 was examined and Exs.B.l to B.4^were marked. The trial Court, on evaluation of eviden,:e adduced^by both the parties, allowed the I.A. determining the market^value of the suit schedule property as hxed by t.he Advocate-

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Commissioner. Hence, the present revision by the defendants Company.

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Learned counsel for the revision petitioners_defendants Company contends that the trial Court, without considering the documents marked on behalf of the defendants, has simply accepted the report of the Advocate_Commissioner without assigning any reasons. It is contended that while ascertaining the mesne prohts, although the market value certificate is not the basis, the trial Court erroneously determined the mesne profits based on the report of the Advocate-commissioner, which refers only to the market value certificates. The trial Court as well as the Advocate_Commissioner erred in considering the rents per square yard basis as there was no practice to pay rents on square yard basis particularly from 1993 to 2003 and none of the documents disclose that the rents are to be payable on square yard basis. It is further contended that the trial Court has failed to take into consideration the documents reried on by the defendants which discrose that for the relevant period, the rent that was being paid to a retail outlet in a property that is situated within the vicinity having more value than the suit propert5r was not more than Rs.200/_ per month.

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On the other hand, the learned counsel appearing on behalf of the respondents-plaintiffs contends that the learned trial Court has rightiy accepted the report of the AdvocateCommissioner for ascertaining mesne prohts, as r_he AdvocateCommissioner, after due enquiry and considering the documents filed by both the parties, has rightly suggested the mesne profits for the relevant period and therefore, the impugned order needs no interference by this Court.

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Heard both the leamed counsel and perusecl the material available on record.

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The main challenge by the revision petitioners as to the ascertainment of the mesne profits is that the tria.. Oourt ought not to have relied on the report of the Advocate-Oommissioner in which, the Advocate-Commissioner determine,j the mesne prohts based on the market va-lue certifrcates. It is contended that the basis for determination of the amount of :rresne prohts depends on the facts and circumstances ol each case considering the place where the propert5r is situated i.e., village or city or metropolitan city, location, nature of premises i.e. commercial or residential area and the rate of rent precedent on which premises can be let out are the guiding f,rctors in the facts of individual case. In this regard, the lea:ned counsel

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placed reliance on the decision of the Apex Court in Martin and Harris Private Limited v. Rajendra Mehtar. The learned counsel, placing reliance on Sumer Corporation v, Vijay Anant

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Ganganz has contended that the market value of the property could not be ttre basis for fixing the monthly compensation/mesne profits. It is contended that the assessment of mesne profrts on square yard basis adopted by the trial Court is untenable and unsustainable and that the defendants are liable to pay mesne profits for use and occupation of the premises at the same rate at which the plaintiffs would have been able to let out the premises and earn rent if the tenant would have vacated the premises.

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Perused the report of the Advocate-Commissioner. The Commissioner has considered in detail Exs.A. 1 to A. 10 and Exs.B.l to E}.4 while assessing the amount of mesne prohts. The Commissioner has discussed in detail the rental values of different outlets of various petroleum companies covered by Exs.A.2 to A.8 which are located within 3-4 kilometers radiation. Among them, Ex.A.2 is the letter dated 07.05.2O03 addressed by the Chief Regional Manager, HPCL to the South Central Railways pertaining to Sai Baba Service Station, which

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| (2022]. 8 SCC 527 ?2022SCC Online SC 1548

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is the outlet of the defendants Company situated very near to the suit schedule land i.e., within a distance of one kilometer. As per Ex.A.2, the defendants Company was asked to pay Rs.38,70,992l- towards rent from 01.04.1986 l.o 31.03.2000, which works out to Rs.23,O4l /- per month an<l Rs.16.65 ps. per sq.yard. Even the contents of the letter were admitted by the Sales Ofhcer of the defendants Company. Moreover, the Advocate-Commissioner has considered the documents filed by the defendants, which are marked as Exs.B.1 trr B.4. Ex.B.l pertains to the land to an extent of 831 sq.yds., situated at Bapuj i Vachnalaya Society, whereunder the land was leased out to the defendants Compaly at Rs.1,900/- per month. However, as the said petrol station was not having diesel outlet and no service station, and as the dealer who was dealing with the outlet of the company was an Ex.MLA, r-he AdvocateCommissioner discarded the same from considere.tion. So also, Exs.B.2 & 8.3 pertain to piece of lands which are owned by the dealer of the company who was running the petrol pump outlet. The petrol pump outlet covered by Ex.B.4 was owned by the wife of the dealer of the company who was already running the petrol pump outlet. As the lease deeds disclose that the petrol pump outlets were started only after the executi,:n of the lease deed by the dealers, the Advocate-Commissioner excluded those

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documents from consideration for assessing the mesne profits. Admittedly, the suit property is 1ocated in a prime locality of Nizamabad, abutting 80 feet main road of Nizamabad City and it is 100 meters away from RTC Bus Stand and 400 meters from Railway Station. Thus, as the Advocate-Commissioner has assessed the mesne profits by considering the oral and documentary evidence placed before him, the trial Court has rightly relied on the said report for assessing the mesne prolits in respect of the suit property. However, this Court is of the view that the enhancement of rent on the rent assessed for the slab from O1.01.1993 to 31.12.1995 at Rs.25/- per square yard at 2Oo/o by the trial Court based on the report of the Advocate_ Commissioner is on higher side and ends of justice would be met if the rate of enhancement is reduced to 15yo for the subsequent each slab of three years while maintaining the impugned order in all other respects. Thus, giving 15yo enhancement for each siab of three years subsequent to the first slab from O 1.O 1. 1993 to 31. 12. 1995, the mesne profits can be calculated as under:-

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(i) Rs.25l- per sq.yd. from 01.01.1993 ro 31.12.1995;

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(ii) Rs.28.75 ps. per sq.yds. from O1.01.1996 to 31.12.1998;

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(iii) Rs.33.06 ps.per sq.yd. from O1.01.1999 to 31.t2.2O01; &

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(iv) Rs.38.01 ps. per sq.yd. from Ot -Ot.2OO2 to O5.O8.2004.

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In the result, the Civil Revision petition is disposed of by reducing the enhancement of rent for the subsecluent each slab of three years subsequent to the first slab from 01.01.1993 to 31.12.1995 from 2O%o to 15%, as indicated above while maintaining the order in all other respects. With regard to the tnterest on the arrears, as there was no finding by the trial Court in this regard, the arrears shall carry interest at 60/0 per arlnum till its realization. No order as to costs.

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Pending Miscellaneous Petitions, if any, shall stand

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closed.

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SD/. MOHD. ISMAIL ASSISTANT REGIS

//TRUE COPYII

SECTION OFFICER

To,

The Senior Civil Judge Nizamabad. 2. One CC to SRl. M RAVINDRANATH REDDY Advocate [OPUC] 3. One CC to SRl. T V KALYAN SINGH Advocate [OPUC] 4. Two CD Copies

DL NS

HIGH COURT

MGP,J

DATED:09/11/2023

ORDER

CRP.No.3237 oi 2014