KAMALAM P THILAKAN Vs. VITHALA NARAYANA SHETTY

JUDGEMENT

(1.) By this Appeal, the Appellants challenge the judgment and decree dated 12 December 2008 passed by a learned Single Judge of this Court in Suit No.3275/1987. That Suit was filed by the present Appellant claiming that he is tenant and owner of business of a hotel carried on in the name of Hotel Park View situated at shop no.5, Room no.4/1, Ground floor, Kantharia Mansion, Plot NO.105 C, Govandi Road, Chembur, Bombay. According to the Plaintiff, the business that was run by the Plaintiff was given on a conducting basis to the Defendant for the period which was to end on 15.08.1987. Even after expiry of that period, the Defendant did not hand over the business back. Therefore, Suit was filed. Substantial final reliefs that were claimed in the Suit were by prayers (a) to (e). It read as under :

(2.) The learned Single judge of this Court as observed has decided the Suit by his judgment and decree dated 12 December 2008. The learned Single Judge decreed the Suit in the following terms : 33(1)The Defendant shall hand over possession of the suit premises together with furniture and fixtures mentioned in the list annexed to the Agreement dated 16 th August 1984 to the Plaintiff failing which the Defendant shall deposit the present market value of the suit premises in this Court. Upon such deposit the Plaintiff shall have his tenancy rights assigned to the Defendant. 33(2)The Plaintiff shall be entitled to withdraw the amount of the market value deposited by the Defendant so soon as he obtains assignment of the tenancy rights in the name of the Defendant by way of a rent receipt issued by the landlord in the Defendant s name. 33(3)The Defendant shall pay liquidated damages at the agreed rate of Rs.500/ per day until he hands over possession of the suit premises to the Plaintiff or deposits the amount representing the market value of the suit premises in this Court. 33(4)The Commissioner for taking accounts shall determine the market value of the suit premises taking into account similar transactions in the locality as also the prices shown in the ready reckoner of 2008 issued by the Government in the absence of an agreement as to the market value between the parties. 33(5)The Defendant shall not create any 3 rd party rights or otherwise sell, encumber, transfer or dispose off the suit premises until he hands over possession or deposits the amount representing the market value of the suit premises as directed above. 33(6)There shall be no order as to costs. 33(7) Both the parties shall be entitled to the return of the original documents produced by them.

(3.) The Defendant has not filed any Appeal against this decree nor has he filed any cross objection. It is only the Plaintiff who has filed the present Appeal. In the present Appeal, the Plaintiff challenges only following portion of paragraph 33(1) of the Order of the learned Single Judge, failing which the Defendant shall deposit the present market value of the suit premises in this Court. Upon such deposit, the Plaintiff shall have his tenancy rights assigned to the Defendant .