1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3372 OF 2008 IN SUIT NO.5592 OF 1999 Mrs ARCHANA MANISH SAMPAT ..PLAINTIFF VS. Mr. GILROY EDWIN VALIES & ORS. ..DEFENDANTS Mr. Hira Gummala for the Plaintiff Dr.A.S.Tilak for Defendant No.7 Mr. N.N.Amin for Defendant No.6 Mr. S.D.Mule for Defendant No.1 to 5 CORAM: Smt ROSHAN DALVI, J. DATED: 6TH March, 2009 P.C.: 1. The suit is filed by and between certain partners. Defendant No.6 is the husband of the Plaintiff. Defendant No.6 supports the Plaintiff. The lis is, therefore, between the Plaintiff and Defendant No.6 on one hand and other Defendants on the other. In the suit the Plaintiff got the Court Receiver appointed inter alia of two premises being 2 Room No.1/6 & Room No.2/6 in Glasswala Builidng, Turner Road, Bandra (W), Mumbai 400 050. Premises 2/6 is stated to be a registered office of the partnership firm of the Plaintiff and other Defendants. Premises No.1/6 is the premises in which the firm had only 'open four table spaces'. 2. It would, therefore, be material to see the right, title and interest of the Plaintiff and/or the partnership firm in the aforesaid two properties for which the receiver came to be appointed. 3. With regard to room No.1/6, Defendant No.1 as partner of the firm of M/s. Imprint Industries entered into an agreement with Defendant No.7 for 'open four table spaces'. M/s. Imprint Industries is not the partnership firm. 4. With regard to Room No.2/6, Defendant No.1 as the partner of the suit partnership firm of M/s. Colour Press entered into an Agreement of leave and licence initially on 16.01.1998. The agreement was for a period of 5 terms of 11 months It came to be extended from time to time. It has expired by efflux of time in about 2003. Under that agreement it is recited that the Defendant No.7, as a licensor, is exclusively entitled to the said premises. 3 5. It can be seen that the partnership firm had no right title or interest to either of the properties claimed to be the properties of the firm. In premises No.1/6 there are only 4 open table spaces. In premises No.2/6 they had a licence which has since expired. For both the premises only the licence / permission to enter upon and use the licensed premises was with the Plaintiff. 6. Defendant No.1, of course, has been paying licence fees to Defendant No.7. However, Defendant No.1 along with Defendant No.2 to 5, who are appointed agents of the Court Receiver upon payment of Rs.10,000/- per month to the Court Receiver but without security, failed to pay to the Court Receiver the agency amount from May 2001 and thereafter. The Court Receiver accordingly obtained directions of the Court and sealed the premises when the amount of Rs.2,20,000 /- became due and payable on or about September 2006. 7. The result is that the premises to which admittedly Defendant No.7 as a licensor was 'exclusively entitled' came to be sealed by the Court Receiver. Hence Defendant No.7 was rightly aggrieved. 4 8. It is contended on behalf of the Defendant No.6 that Defendant No.7 is receiving the licence fees and hence there is no prejudice. The contention is incorrect. Prejudice to the person who is exclusively entitled to the immovable property is amply seen by sealing the property. Since the property belongs to Defendant No.7 he is entitled to do whatever he desires with his property. His rights cannot be curtailed by the seal of the Court Receiver. Conversely the parties to the suit who are the partners of the firm as also Defendant No.6 who is the husband of the Plaintiff is not entitled to the suit property. They being only licensees thereof, can enter upon the suit property only upon the permission of Defendant No.7. Such property cannot be an asset of the partnership firm. 9. It is for the Plaintiff to see that the suit property is not prejudiced and the rights of others are not affected since the Plaintiff got the Court Receiver appointed. Upon the rights of Defendant No.7 being affected, it is now seen that the property, not being asset of the firm, was not the property of which Court Receiver could have been appointed. 10. It is interesting to see that in the schedule showing the property of the firm in Exhibit E to the Plaint the two premises Room No.1/6 & 2/6 are shown as 'benefit of 5 possession and use of the premises'. Court Receiver cannot continue to be Receiver of the 'benefit of possession and use of the premises', since the agent of the Court Receiver has not paid the Court Receiver's royalty that was required. 11. It is argued that Defendant No.7 has colluded with Defendant No.1 to make this Application since Defendant No.1 has not paid the royalty amount but paid DefendantNo.7 the license fees and would desire the property to revert back to Defendant No.7. In that case, Defendant No.6 who supports the Plaintiff and/or the Plaintiff must pay the royalty amount to the Court Receiver and to continue to pay the license fees to Defendant No.7. 12. Hence the following order: 1) The Agency of Defendant No.1 is terminated for default in payment of royalty from May 2001. 2) The Plaintiff and/or Defendant No.6 may be allowed to be agents of the Court Receiver upon paying up all the arrears of royalty and upon continuing to pay the same royalty as before. 3) Such payment shall be made within 4 weeks from 6 today. 4) If the aforesaid payment is made the Court Receiver shall allow the Plaintiff and Defendant No.6 to carry on business as his agents in the place and stead of Defendant No.1 and Defendant No.2 to 5. The Plaintiff and Defendant No.6 shall be entitled to enter upon the suit premises as permitted by Defendant No.7 in the aforesaid licence agreements. 5) If the aforesaid amount is not paid and the agency shall stand terminated, The Court Receiver shall be discharged as Receiver of the said two premises subject to payment of his costs, charges and expenses. 6) Notice of Motion stands disposed of accordingly. 7) This order is stayed for 4 weeks. (Smt Roshan Dalvi, J)