1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3971 OF 2008 IN SUIT NO.2498 OF 2003 IN COURT RECEIVER’S REPORT NO.71 OF 2009 Kiran Shah & Ors. .. Plaintiffs Versus Madhusudan Kalidas Shah .. Defendant Mr.S.Bharucha i/b. R.T.Parekh for plaintiffs Ms.Purohit for defendant Mrs.U.S.Srivastava, Asstt. to C.Receiver CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd March 2009. P.C. . This is a notice of motion by the original defendant. He prays that the Court Receiver be discharged and further directions be issued so that the amounts deposited with the 2 Prothonotary & Senior Master by the Receiver to the credit of the suit can be invested. He also prays that directions be issued to the Commissioner for taking Accounts to expedite the proceedings. 2. Along with this motion, Receiver’s report is also placed. The report indicates that the defendant who has been appointed as Agent of Court Receiver in respect of immovable property has not abided by the condition to pay royalty. Ad-hoc royalty is determined as Rs.8000/- per month but defendant is in arrears since 2006. 3. At the outset, learned Counsel appearing for defendant, on instructions, makes a statement that the defendant would pay arrears of amount of Ad-hoc Royalty within a period of three months from today, subject of course, to his rights to challenge the determination of royalty by the Receiver. The Royalty is ad-hoc and the Court 3 Receiver will take steps to determine the Final Royalty Figure, but that does not absolve the defendant from his obligation to pay ad hoc royalty. That must be done and, if any default is committed and the amounts are not remitted as undertaken above, then, all consequences in law would follow, including dispossession of the defendant from the suit property. 4. The motion proceeds on the basis that the properties of which Receiver has been appointed are not estate of the firm. 5. The averments in paras 7 to 11 of the affidavit in support have been denied by plaintiffs’ Advocate. It is specifically denied that the defendant is the sole tenant. 6. After a perusal of the notice of motion and the reply affidavit, I am of the view that the issues raised therein with regard to the 4 right, title and interest of the firm in the subject immovable property, cannot be decided at this stage. It is only at the trial and after complete evidence is led that the Court can determine whether the firm has any right in the property or not. Motion at this stage is misconceived and is accordingly dismissed. 7. Reliance placed upon the decision of the Supreme Court reported in 2007 (4) S.C.C. 306 (Amar Nath Agarwalla Vs. Dhillon Transport Agency) is misplaced because there, what was before the Supreme Court was a Final judgement and order of the High Court of Calcutta in a First Appeal, which was filed challenging the Decree of the trial court. The decree was in a suit filed for Eviction. It is only after trial that the Court came to the conclusion that is recorded in the judgement. As to how this judgement can be of any assistance at this stage, is not clear to me at all. In the light of the 5 above, motion is dismissed. 8. However, if the matter is pending before the Commissioner for taking Accounts, he shall endeavour and dispose of the same as expeditiously as possible. Receiver’s report stands disposed of in terms of the statements recorded in para 3 and subject to above. (S.C.Dharmadhikari, J)