1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.311 OF 2008 IN SUIT NO.1989 OF 1995 Sanjeev @ Sanjay Subash Grover .. Plaintiffs Versus Vertex Trading Co. & Anr. .. Defendants Mr.Girish Kulkarni with Ms.Puja Thorat i/b. M.V.Kini & Co. for plaintiffs Mr.D.D.Madon, Senior Advocate with Simil Purohit i/b. Thakore Jariwala & Associates for defendant Nos. 1 and 2. CORAM : S.C.DHARMADHIKARI, J. DATE : 24th September 2009. P.C.: 1] This is a chamber summons by the plaintiff to set aside an order passed by the Court Receiver, determining the royalty payable by the defendants at Rs.25,000/- per month. 2] The request is that the said royalty should be enhanced to Rs. 75,000/- per month. 2 3] Mr.Kulkarni appearing in support invited my attention to the order of the Court Receiver and contended that the Court Receiver has relied upon a report of a valuer. That Valuer had submitted his report some time in the year 2006. The ad hoc royalty was determined on 26th June 2006. When the Court Receiver was determining the royalty/ compensation payable by the agent per month and that too in the year 2007, then, he ought to have gone by the potential of the property/ premises prevalent in that year. More so, when in the entire area there are shops on both sides so also commercial premises and there are instances of sale in the very same building where the suit premises are situated. Now, the valuation report is also on record. The valuer Mr.Roshan Namavati had submitted a report and had pointed out as to how the valuation done by the panel valuer is erroneous. Mr.Namavati’s report is dated 4th August 2006 and he had concluded that the valuation should be at Rs.91,181.80, excluding all outgoings. Considering the area and the nature of the use so also the potential, Mr.Kulkarni submits that the royalty should be enhanced. All the more, when the defendants have no right, title or interest in the suit premises and their proceedings have failed. 3 4] On the other hand, Mr.Madon, learned Senior Counsel appearing for defendants contended that the valuation report filed by the panel valuer and accepted by the Court Receiver requires no interference. The premises have been handed over to the defendants for use as a warehouse/ storage. Therefore, comparison with instances wherein office and shop premises are sold and/or disposed of, is wholly erroneous. The valuation cannot be done on that basis. 5] I have perused the chamber summons and the affidavits filed in reply and rejoinder. I have also gone through the report of valuers, which have been relied upon, including the report of the panel valuer. 6] There is substance in the contention of Mr.Kulkarni to the extent that the premises are in possession of the defendants after it is held by competent court that their plea of tenancy has no basis. In other words, the defendants could not substantiate their plea of tenancy and have lost the proceedings in that behalf, right upto Hon’ble Supreme Court. However, when the Court Receiver is appointed and this Court has 4 directed that the defendants shall continue in possession as the Agent of Court Receiver, then, merely because the proceedings initiated by the defendants are disposed of, cannot be a ground enough to enhance the royalty. The compensation has to be determined on the basis of the factual position in this case. The suit is of 1995 and the defendants are continuing as the Agent of Court Receiver. This Court in the year 2006 granted liberty to the plaintiff to apply for enhancement in the royalty/ compensation. An adhoc sum was determined. The panel valuer has submitted his report and there is a contrary report placed on record. Considerable time has lapsed after the said reports so also the order of the Court Receiver. In such circumstances, taking an over all view of the matter and finding that the suit itself is not being disposed of for all this time, the royalty / compensation can be enhanced but not as claimed by the plaintiff. In my view, interest of justice would be sub-served if the amount is enhanced to Rs.40,000/- per month. 7] The Agent/ defendants who are in possession of the premises shall pay the amount of Rs.40,000/- per month as royalty from the date of institution of the chamber summons. The arrears to be cleared within 5 twelve weeks from today. Chamber summons disposed of. 8] From 10th of October 2009, the defendants shall pay the royalty amount determined hereinabove. Liberty to plaintiff to apply for the withdrawal of the sum deposited after the same is made. The application in that behalf will be dealt with in accordance with law. (S.C.DHARMADHIKARI, J)