JUDGMENT Hon’ble Krishna Murari, J.—This is an application seeking review of the judgment and order dated 9.3.2010 whereby while dismissing the revision, the applicant was allowed time to vacate the premises in question by 31.3.2010 and to pay a sum of Rs. 60 Lakhs per month with effect from February, 2010 for use and occupation of the premises and other equipments. 2. Sri Rakesh Dwivedi, learned Senior Advocate in the course of argument has confined himself to the following four grounds : (I) The cheques issued by the applicant which have not been encashed and lapsed may be revalidated; (II) Undertaking to be filed by the applicant before the executing Court to handover the vacant possession by 31st July, 2010 may be filed before this Court; (III) The applicant, as per the own affidavit to vacate the premises in a phased manner, has not vacated any part; and (IV) Payment of Rs. 60 Lakhs per month directed by this Court should be without prejudice to the rights to claim damages at the current market rate. 3. In so far as the ground No. (I) is concerned Sri Shashi Nandan, Senior Advocate appearing for the applicant has made a statement that within ten days of handing back the expired cheques by the opposite party, the applicant shall revalidate the same and hand the same back to the respondent or any of its officer authorised in this behalf. Considering the statement made, the applicant may revalidate the cheques and hand back the same to the respondent or any of its officer authorised in this behalf within ten days of the receipt of the same. 4. With respect to ground No. (II), it has been urged by Sri Rakesh Dwivedi, Senior Advocate that appropriately undertaking ought to have been directed to be given before this Court so that in case of any violation appropriate proceeding could have been drawn against the applicant. In any view of the matter, since the undertaking was to be given by the applicant under the direction of this Court, violation, if any thereof, can very well be taken note of by this Court and appropriate proceedings can be drawn. This Court would not become powerless only because the undertaking has been given before the executing Court. In view of above, the order dated 9.3.2010 does not need any modification on this issue. 5. This Court would not become powerless only because the undertaking has been given before the executing Court. In view of above, the order dated 9.3.2010 does not need any modification on this issue. 5. With respect to point No. (III), Sri Rakesh Dwivedi, Senior Advocate has made a statement that in view of the fact that entire premises is to be vacated by 31st July, 2010 hence he is not pressing this issue. 6. With regard to point No. (IV), it has been urged by Sri Rakesh Dwivedi, Senior Advocate that the review applicant/opposite party is entitled to claim damages at the current market rate and fixation of Rs. 60 Lakhs per month by this Court should not stand in the way of the review applicant/opposite party in enforcing the rights. It has further been submitted that there was neither any agreement nor any determination by the Court regarding payment to be made for use and occupation of the premises permitted by the Court and the sum of Rs. 60 Lakhs was fixed by the Court on the basis of unilateral offer made by the applicant in their various letters. The said offer was never accepted by the review applicant/opposite party and the unilateral determination should not affect the right to claim damages at the prevailing market rate. 7. In reply, it has been submitted by Sri Shashi Nandan, Senior Advocate that if there is any such right available to the opposite party, the same may be enforced in proper proceeding before a proper forum. 8. It is no doubt correct that sum of Rs. 60 Lakhs for use and occupation of the premises directed to be paid in the order under review was not determined by the Court by applying any principle or on the basis of evidence but the amount was assessed only on the basis of the amount in the lease agreement between the parties and the fact that the area of Studio-A was vacated and the possession was handed over to the respondent-review applicant on 3.2.2010. 9. The issue for determination is whether the applicant is entitled to claim damages at the market rate or determination of Rs. 60 Lakhs as per the order under review is conclusive. The question came up for consideration before the Hon’ble Apex Court in the case of Union of India v. Banwari Lal & Sons; 2004(5) SCC 304 . 9. The issue for determination is whether the applicant is entitled to claim damages at the market rate or determination of Rs. 60 Lakhs as per the order under review is conclusive. The question came up for consideration before the Hon’ble Apex Court in the case of Union of India v. Banwari Lal & Sons; 2004(5) SCC 304 . While repealing the contention that quantum of damages is assessed on the basis of marketability of the property on the date when possession ought to have been handed over and in cases where the property is in occupation of trespasser, damages cannot be based on rental basis and for computing damages for illegal occupation, rent payable by the appellant during the period of the requisition cannot be taken into account, the Hon’ble Court in paragraph 7 and 8 of the judgment has observed as under. “7. Two issues arise for determination in the civil appeal, namely, whether the use and occupation of the property by the appellant after 10.3.1987 was wrongful and illegal and in the nature of trespass; and whether the arbitrator had failed to take into account relevant factors in assessing damages awarded in favour of the respondent. 8. At the outset, we may point out that there are different methods of valuation, namely, income/profit method, cost of construction method, rent method and contractors’ method. In the present case, the arbitrator has applied the income/profit method. The above two issues are interconnected, as the arbitrator has assessed damages on assumption that after 10.3.1987, the occupation and possession of the property was wrongful and illegal and in the nature of trespass. Accordingly, he has assessed damages on the footing that the respondent was entitled to mesne profits. This assumption was wrong as the appellant was given time by this Court to remain in possession up to 31.3.1993. In Rao, Kameshwara : Law of Damages and Compensation (5th Edition Vol. I P. 528), the learned author states that right to mesne profits presupposes a wrong whereas a right to rent proceeds on the basis that there is a contract. But there is an intermediate class of cases in which the possession though not wrongful in the beginning assumes a wrongful character when it is unauthorisedly retained and in such cases, the owner is not entitled to claim mesne profits but only the fair rent. But there is an intermediate class of cases in which the possession though not wrongful in the beginning assumes a wrongful character when it is unauthorisedly retained and in such cases, the owner is not entitled to claim mesne profits but only the fair rent. In the present case, in view of the permission granted by this Court enabling the appellant to use and occupy the property up to 31.3.1993, it cannot be said that the possession of the appellant was illegal and wrongful and in the nature of trespass. In the circumstances, damages were claimable not on the basis of mesne profits but on the basis of fair rent.” 10. After recording the aforesaid finding, the Hon’ble Apex Court has further observed that the damages were required to be assessed for use and occupation of the premises after 10.3.1987 by the appellant under the orders of the Court by applying rent method. 11. In view of the aforesaid law laid down by the Hon’ble Apex Court, it cannot be said that in the facts and circumstances of the present case where also the applicant has been allowed to remain in possession under the orders of the Court, the review applicant/opposite party would be entitled for damages at market rate rather the damages are to be assessed by applying rent method determinig fair rent as damages as held by the Hon’ble Apex Court in the above case. In such circumstances, the review applicant cannot be held to be entitled to claim damages at the prevailing market rate. However, what should be “fair rent” is a question dependent upon so many factors such as municipal assessment, prevailing competition in the locality, the condition of the property, rent paid under the lease agreement and the like, requiring evidence. Since in the present case, Rs. 60 lacs per month to be paid as damages for use and occupation was not determined by applying any principle or evidence but was fixed in equity, the review applicant is entitled for determination of damages in accordance with the law laid down by the Hon’ble Apex Court in the case of Union of India v. Banwari Lal (supra). 12. 60 lacs per month to be paid as damages for use and occupation was not determined by applying any principle or evidence but was fixed in equity, the review applicant is entitled for determination of damages in accordance with the law laid down by the Hon’ble Apex Court in the case of Union of India v. Banwari Lal (supra). 12. In view of above facts and discussions, in case the review applicant/opposite party initiates appropriate proceeding for determination of damages for use and occupation of the premises before appropriate forum, the same may be decided in accordance with law and in the light of the observations made herein above and Rs. 60 Lakhs determined by this Court shall not affect such determination by the appropriate forum. 13. Subject to aforesaid observations and discussions, the review application stands disposed of. ————