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Delhi High Court : THE COMMISSIONER CENTRAL EXCISE & ORS versus USHA VAISH & ORS : 20th February, 2017

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.


versus


USHA VAISH & ORS                     ..... Respondents
Through: None.

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI


O R D E R
20.02.2017


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
ap/rkb

Additional Info

  • Date Range: Monday, 20 February 2017
  • Court/Authority: High Court
  • Tax Type: Others
  • Petitioner/Appellant: THE COMMISSIONER CENTRAL EXCISE & ORS versus USHA VAISH & ORS
  • Respondent: THE COMMISSIONER CENTRAL EXCISE & ORS versus USHA VAISH & ORS
  • Appl no. or Appl year: RFA 990/2016 & C.M. NO. 46740-41/2016
  • Supreme Court Location: Delhi
  • High Court Location: Delhi High Court
  • AAR Location: Delhi
  • Authority: Supreme Court

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