1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1900 OF 2009 IN SUIT NO.1199 OF 2009 Dhansukh Ramji Rathod .. Plaintiff Versus Kishore Ramji Rathod & Ors. .. Defendants Mr.N.G.Thakkar, Senior Advocate with M.P.Rao and Ms.Manjari Shah & G.C.Mohanty i/b. M/s.Kirit Damania & Co. for plaintiff Mr.A.Bookwala, Senior Advocate with Ms.P.L.Bachhani i/b. I.R.Joshiand Co. for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 24th July 2009. P.C.: 1] In this motion a prayer is made by the plaintiffs is that the Court Receiver, High Court Bombay be appointed as Receiver of the assets and properties of the firm. The Firm’s name is “Figure in Health Care”, according to the affidavit in support of plaintiff No.1. However, during the course of arguments a complaint was made that the name of the firm is changed. Mr.Thakkar, learned Senior Counsel appearing for plaintiffs 2 after taking instructions makes statement that nature of the business carried on has not been changed. At the most, the name in which business has been carried on has undergone a change. Nonetheless, at this stage, there is no dispute inasmuch as plaintiff and defendant No.1 are the partners of partnership firm in question. 2] The business appears to be of managing and administering the health care facilities. It is a gymnasium cum health club. The business is being carried on from Four shops which are situate at ground floor and basement of the building and the property, details of which are more particularly set out in Exh.A to the plaint. The partnership is at will and deed of partnership is dated 7th August 2004. 3] At this ad-interim stage, when there are allegations made against each other it is not in serious dispute that Court Receiver, High Court Bombay must be appointed as Receiver of this property and Asset of the firm. Even otherwise, it is just and convenient that he should be so appointed. 3 4] It is stated that defendant No.1 is carrying on the activities of the firm. He has enrolled certain members who have paid their subscriptions and deposits. The amounts are stated to be invested in bank accounts and one of the Banker is defendant No.2. Needless to state that defendant No. 1 shall hand over all papers, documents, statements, records in relation to this business to the Receiver and the Receiver shall take charge of the bank accounts and passbooks so also related papers. A request is made by Mr.Thakkar on instructions that the first defendant has enrolled certain persons as members who are availing of the facilities and rather who have paid their subscriptions, would be deprived of the facilities and enjoyment thereof, if the Receiver immediately takes possession and stops the activities. The apprehension expressed by Mr.Bookwala is that considering the serious allegations made and when parties have lost faith and trust in each other, the first defendant cannot carry on the business when there is appointment of court receiver by consent of parties. If he desires to be appointed as an Agent of the Court Receiver, he can only be appointed provided he renders all cooperation and assistance to the Court Receiver in taking possession so also discloses the transactions till date. 4 5] In my view, it would not be fair and proper at this stage to straight away permit anybody to continue business as an agent of Court Receiver. It is for the Court Receiver to submit a report to this Court and seek appropriate orders and directions and needless to observe that if the first defendant was continuing with the business till date, he can request the court for being appointed as an Agent of Court Receiver on such terms as this Court deems fit and proper. If none of the parties can be appointed as Agent of Court Receiver, the Court would issue necessary directions permitting the Court Receiver to appoint a third party as his Agent to carry on the health club/ gymnasium. 6] It is stated that the firm has a office in the shop premises/ basement/ ground floor where the gymnasium cum health club is presently functioning. Needless to state that the Court Receiver stands appointed as Receiver even in respect of those premises. 7] After taking custody of all documents and records so also taking possession of the premises for the present, the Court Receiver shall not display his Board. However, after parties furnish all details and 5 particulars, the Court Receiver can seek directions with regard to payment of statutory and other dues in relation to these premises. 8] It is clarified that the Court Receiver stands appointed as Receiver of the property described above so also the business of M/s.Figure In and Fitnez, which is stated to be the new name of the business which is being conducted from the said premises. (S.C.DHARMADHIKARI, J)