1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO.5 OF 2008 IN SUIT NO.1777 OF 2004 (COURT RECEIVER'S REPORT NO.281 OF 2008) Salma Asgarali Makati & Ors. ...Petitioners Vs. (Orig.Pltfs.) Shabbir Shaikh Shamsuddin Pachorawala & Anr. ...Respondents And (Orig.Defdts.) Eden Textranics Pvt. Ltd. ...Respondent No.3 Mr. Rashid Khan with Ms. T. Zaidy i/b. Zaidy & Co., for Petitioners Mr.Sunil Gangaram i/b. RMG Law Asso., for Defendant No.1 Mr. Chetan Kapadia i/b. Kishore Thakardas & Co., for Respondent No.3 CORAM: SMT.ROSHAN DALVI, J. DATED: 3RD OCTOBER, 2008 P.C. 1. The contempt allegedly relates to dispossession of Respondent No.3 by Respondent No.1. The possession has been restored. The Respondent No.3 has thereafter, continued to pay license fee payable to the Court Receiver appointed in the Suit. 2 2. In the Contempt Petition the contempt is alleged with regard to the dispossession as well as for payment of less license fee, than is stated to be payable. 3. The question of considering contempt by way of dispossession does not now raise in respect of the suit premises. Only the aspect of the extent of payment has to be considered. 1. The Court Receiver determined payment to be made for the suit premises only upon hearing the Plaintiff's Advocate. The Respondent No.3 as the occupant was directed to make payment of Rs.28,000/-. He refuted that claim, hence the Court Receiver was directed to hear Respondent No.3 also. The Court Receiver heard all the parties. The Court Receiver considered the agreement admittedly executed by and between the parties in 1995. That agreement shows payment of Rs.4500/- per premises. There are 4 such premises. Under that agreement a consolidated amount of Rs.18,000/- per month is payable. 2. It has been the Plaintiff's representation before the Court Receiver that the license fee at the rate of Rs.7000/- per month is payable. Only one receipt dated 16th December, 3 2004 was relied upon and produced by the Plaintiff. Even in the Contempt Petition, the Plaintiff has produced only that receipt. The Plaintiff has not produced either any agreement showing further license fee payable, executed between the parties after the agreements executed in 1995 came to an end by afflux of time, nor any copies of the receipt kept in the normal course by the Plaintiff. Showing further amount payable under any agreement between the parties. The fact remains that further amount is paid by the Respondent No.3. The Respondent No.3 claims over-payment. The Court Receiver has been directed to compute the over- payment, if any. 3. The Court Receiver has made his report in that behalf for obtaining directions with regard to the excess amount admittedly paid by the Respondent No.3. The Court Receiver's report shows consideration of this aspect fully. The agreement between the parties at present is only the agreement of 1995, which shows payment of Rs.4500/- as the agreed license fee. Hence, no contempt or breach of any order is shown. Hence, the excess amount is shown to be paid by the Respondent No.3 which is not based upon any written agreement between the parties constituting any novatio between the parties. Hence following order: 4 O R D E R i) There shall be no order on the Contempt Petition. No order as to costs. ii) The Court Receiver shall at present keep the amount of Rs.3,78,000/- paid by the Respondent No.3 to the credit of the Suit. iii) The license fee payable by the Respondent No.3 to the Court Receiver shall be adjusted from the excess amount deposited with the Court Receiver until further orders are passed. iv) The Respondent No.3 shall continue to pay at the rate of Rs.18,000/- per month to the Court Receiver regularly until further orders. v) The Court Receiver shall be entitled to costs of Rs.1000/- in respect of his Report No.281 of 2008. Both the Court Receiver' s Reports are disposed off accordingly. vi) Court Receiver's Report disposed off accordingly. (SMT. ROSHAN DALVI, J.)