1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1220 of 2008 IN SUIT NO. 1033 of 2008 Mr.Nitin Manubhai Shah & Anr. .. Plaintiffs versus Laalavati Raghu Shetty & ors. .. Defendants ... Ms.Someya Srikrishna i/b M/s.Little & Co. for the plaintiffs. Mr.Bhavesh Parmar for the defendant nos.1 and 2. CORAM : D.G.KARNIK, J DATED : 16th April 2008 P.C.: 1. By consent heard finally. 2. Heard learned counsel for the parties. 3. The defendant no.1 is a lessee of the premises bearing shop no.9, Mulji House, 437, 2 Savarkar Marg, Prabhadevi (for short ’suit premises’) The defendant no.1 was previously running a hotel/eating house in the suit premises. The plaintiffs and the defendant no.3 entered into a partnership on 14th July 2005 for business of running hotels. The partnership firm is joined as the defendant no.3. By an agreement dated 14th July 2005 the defendant no.3 partnership firm entered into a business conducting agreement with defendant no.1 for conducting his hotel. Possession of the suit premises was also handed over to the defendant no.3 for conducting the business. Under the business conducting agreement, the defendant no.3 gave to the defendant no.1 a sum of Rs.Three lakhs by way of security deposit and agreed to pay royalty at the rate of Rs.15,000/- per month. 4. On 11th January 2008, the plaintiffs gave a notice to the defendant no.2 terminating the partnership. On 6th February 2008, the plaintiffs gave a notice to the defendant no.1 terminating the business conducting agreement with effect from 29th February 2008 and calling upon it to adjust the amount of deposit towards the arrears of royalty and repay the balance of security deposit. It appears that thereafter the possession of the premises was also handed over by defendant no.3 firm to the 3 defendant no.1 though there is some dispute about the same. The plaintiff has taken out this motion for appointment of a court receiver in respect of the suit premises and for restraining the defendant no.1 from selling, dealing with, transferring, alienating or parting with the possession of the suit premises or carrying on any business or hotel or otherwise in the suit premises. 5. Admittedly, the plaintiffs are not the owners or lessees of the premises. They along with the defendant no.2 were allowed to occupy the suit premises under the business conducting agreement dated 14th July 2005. On dissolution of the defendant no.3 partnership the business conducting agreement also came to an end. Quite apart by a notice dated 6th February 2008 the plaintiffs themselves have terminated the business conducting agreement with effect from 29th February 2008. In view of the termination, the plaintiffs cannot have any right to occupy the suit premises. In her affidavit, defendant no.1 has stated that she has taken possession of the suit premises from defendant no.2 on dissolution of the partnership firm with effect from 29th February 2008. This is in consonance of the notice of termination of the business conducting agreement issued by plaintiffs. 4 The defendant no.1 being the lessee is entitled to the possession and is lawfully in possession of the suit premises. Plaintiffs have no right, much less the present right, to dispossess the defendant no.1 which is a condition precedent under Order 40 Rule 1 of the Code of Civil Procedure for appointment of a receiver. In the circumstances, receiver cannot be appointed in respect of the suit premises. Similarly, defendant no.1 being in lawful possession of the suit premises cannot be prevented from carrying out any business of her choice. In fact she is the owner of the hotel business and she had only entered into the business conducting with the defendant no.3 firm which has come to an end. As the business conducting agreement has come to an end, the defendant no.1 as the owner of the hotel business is entitled to carry on the hotel business or any other business of her choice. In the circumstances, plaintiffs are not entitled to any relief of injunction. Hence, the motion is dismissed. (D.G. KARNIK, J)