IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA 990/2016 & C.M. NO. 46740-41/2016
THE COMMISSIONER CENTRAL EXCISE & ORS ..... Appellants
Through: Mr. Amish Aggarwala and
Mr. Satish Aggarwala, Advocates.
USHA VAISH & ORS ..... Respondents
HON'BLE MS. JUSTICE HIMA KOHLI
O R D E R
1. The appellants/defendants have assailed the judgment and decree dated 10.12.2015 passed by the learned trial court in favour of the respondents/plaintiffs in a suit for possession, permanent injunction, arrears of rent and mesne profit etc. in respect of flat No. 312A, 8, Deep Shikha Building, Rajendra Place, New Delhi-110008.
2. During the pendency of the aforesaid suit, the appellants/defendants had handed over vacant peaceful possession of the suit property to the respondents/plaintiffs in the October, 2010, which date was however disputed by the other side before the trial court. This left the dispute with regard to the arrears of rent/mesne profits.
3. Under the impugned judgment and decree, the trial court had awarded mesne profit in favour of the respondents/plaintiffs @ 60 per sq. feet per month with effect from 016.2008 to 02.11.2010 and the appellants/defendants were directed to render the accounts of the payment of the maintenance charges by them to the Building Maintenance Agency. Costs of the suit were also awarded in favour of the respondents/plaintiffs.
4. Aggrieved by the aforesaid judgment, the appellants/defendants have filed the present appeal along with an application for seeking condonation of delay of 176 days in filing the appeal.
5. Having regard to the submission made by learned counsel for the appellant on 19.12.2016 to the effect that the mesne profits, as awarded by the trial court had already been tendered to the respondents/plaintiffs in the execution proceedings filed against them, it was enquired as to whether the said amount had been tendered without prejudice to the rights of the appellants/defendants to file/pursue the present appeal. Learned counsel for the appellants/defendants had stated that he may be permitted to verify the correct position from the department. At the request of the counsel for the appellant, the matter was adjourned to 31.1.2017 and on 31.1.2017, to 20.2.2017 i.e., today.
6. Today, learned counsel for the appellants/defendants states that he has obtained instructions from the department and filed copies of the orders passed in Ex.No. 125045/2016 which reveal that the decretal amount was tendered by an officer of the appellants/defendants to the authorised representative of the respondents/plaintiffs on 18.11.2016 in the execution petition which was disposed of. At the time of tendering the decretal amount, the appellants/defendants did not reserve their right to pursue the present appeal that was filed on 27.10.2016, but remained under objections and was re-filed on six occasions, only to be listed before the Court on 19.12.2016. By the said date, the decretal amount had already been paid to the respondents/plaintiffs.
7. In the above circumstances, the appeal is disposed of as infructuous, alongwith the pending applications.
8. Learned counsel for the appellants/defendants requests that as the appeal has been is disposed of as infructuous at the stage of admission itself, the court fees affixed thereon may be refunded.
9. The Registry is directed to issue a certificate in favour of the appellant for refund of court fee to the extent of Rs.16,000/-.
HIMA KOHLI, J
FEBRUARY 20, 2017