1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3688 OF 2008 IN SUIT NO.1489 OF 2006 Sheela Anant Chavan & Ors. ..... Plaintiffs V/s. Manohar Shankarrao Chavan & Ors. ...... Defendants. Mr.A.G.Damle, for the plaintiffs Mrs.S.A.Dhamale, for defendants and in support of Notice of Motion taken out by defendant No.3. Ms.Uma Srivastava, 2nd Assistant to Court Receiver, present in Court. CORAM: R.Y.GANOO, J. DATED: 14th JANUARY, 2009. P.C. 1. The defendant No.3 has taken out this notice of motion for following reliefs : (a) This Hon'ble Court since already appointed Court Receiver, High Court, Bombay, in respect of open plot of land adm.about 2300 sq.meters and business of wedding hall in view of the order dated 07-02- 2008 passed by the Hon'ble Justice Chandrachud, J., the defendant No.3 be appointed as a agent of the Court Receiver in respect of the open plot of land admeasuring about 2300 sq. meters, by order of this Hon'ble Court with the direction of fixing Royalty of Rs.25,000/- per month or Rs.5,000/- per programme as this Hon'ble Court deems fit and proper. (b) This Hon'ble Court in the alternative may pass an order 2 modifying the previous order passed by the Hon'ble Justice Chandrachud, J., dated 07-02-2008 directing the Court Receiver, High Court, Bombay, to allow the defendant No.3 to continue his business on the said open land adm. 2300 sq. mtrs. for conducting marriage celebrations and other programmes, on conducting basis and to pay Rs.5,000/- per programme as a conducting fee/royalty to the Court Receiver, High Court, Bombay, pending decision in this suit. 2. Few facts are required to be stated which resulted in taking out the present notice of motion. By an order passed by this Court on 07- 02-2008, the Court Receiver was directed to conduct bidding between the parties to the suit and the bidding was accordingly conducted. The plaintiffs as a group offered bid. The defendants as a group offered bid and the last bid went in favour of the plaintiffs for a sum of Rs.14,91,000/-. The defendants had given a bid of Rs.14,90,000/-. Though, the plaintiffs were treated as successful bidder, they declined to act as an agent of the Court Receiver for the reasons best known to them. The defendants who were the second highest bidder also declined the status as agents of the Court Receiver. It is in these circumstances, the present notice of motion is taken out by the defendant No.3. 3. It is required to be mentioned that the property in regard to which the Court Receiver has been appointed, admeasures 2300 sq.mtrs. There is one banquet hall which also constitutes suit property and parties 3 before this Court admit that so far as banquet hall is concerned, defendant No.1 is appointed as an agent of the Court Receiver on certain terms and he is functioning as agent of the Court Receiver. There is no connection between the said banquet hall and the land admeasuring 2300 sq.mtrs (hereinafter referred to as the 'Said Property'). The question is as regards the said property. 4. The defendants have contended that in the past, they were in possession of the said property and that is how they have put up their claim to be agent of the Court Receiver. According to the defendants, by prayer clause (a), they are prepared to pay fixed royalty of Rs.25,000/- per month or Rs.5,000/- per programme. By prayer clause (b), alternative prayer is made so as to appoint defendant No.3 as agent of Court Receiver on conducting basis on payment of a sum of Rs.5,000/- per programme. In substance, the defendants want that defendant No.3 should be appointed as an agent of the Court Receiver on terms not more than Rs.25,000/- per month or Rs.5,000/- per programme. 5. The plaintiffs have objected to this notice of motion, contending that by this notice of motion defendants want to go back so far as the order dated 07-02-2008 is concerned and according to the plaintiffs, if the plaintiffs declined to be the agent of the Court Receiver being the highest bidder, the responsibility fell on the defendants as the second 4 highest bidder and therefore, it would not lie in the mouth of the defendants to seek modification of the bid amount by the present notice of motion. 6. I have heard the rival submissions and noted the situation which has arisen on account of conduct of parties. It is seen that the said property is an open plot of land and can be used to have marriage functions or other social functions and the said land is capable of being exploited by giving it to various persons on hire basis. It is in this context, the parties are interested in putting up their claims with regard to the said property by being as an agents of the Court Receiver. The suit property is situated at Goregaon (West), which a developed area and it is well known that in Mumbai, there is a shortage of accommodation so as to perform social functions. The defendants have submitted that they should be asked to pay royalty of Rs.25,000/- p.m. or Rs.5,000/- per programme. In my view, if royalty is based on a programme basis, the arrangement will not fetch maximum amount from the said land because it is quite possible that a party who is appointed as an agents of the Court Receiver may not be in a position to get orders and if there is no booking for a particular month or if there is comparatively less booking, the property would not fetch maximum amount. Needless to mention that the Court must fix the maximum amount which can be fetched by user of a particular property by a person who acts as an agent of the Court Receiver. In such a case, 5 there is no question of appointing any of the party on payment of per programme basis. 7. The next question is what would be the amount which would be fixed on a monthly basis to be paid by a party to act as an agent of the Court Receiver. An amount of Rs.25,000/- quoted by defendants is very much less as it is the fact that any ordinary marriage hall is let out to a party for a sum of Rupees 10-15 thousand depending upon the locality where the marriage hall is situated. If the figure suggested by the defendants at Rs.25,000/- is granted, it will be clear that the defendants would be paying a very meager and nominal amount and they would be enriching themselves leaving the other side to loss. In my view, a sum of Rs.25,000/- sought to be suggested by the defendants cannot be accepted. 8. No statistics has been placed before the Court by any of the parties to suggest as to what would be the best amount which can be fetched in case of a property of such a nature. The learned counsel for the defendants at one stage suggested that a valuer should be appointed to arrive at a reasonable figure. This submission was opposed by the plaintiffs contending that the Registered or Chartered Architect would not be able to give any valuation as to what would be the amount of rent fetched by giving said land for marriage function. I agree with this 6 submission. The request to appoint a valuer is rejected. I have considered the rival contentions and the peculiar facts and circumstances of this case. It is seen that plaintiffs and defendants participated in the bidding process and the plaintiffs started with bid amount of Rs.34,000/- and took it upto Rs.14,91,000/-. The defendants started the figure at Rs.35,000/- in response to the figure of Rs.34,000/- by the plaintiffs and ended at Rs.41,90,000/-. It appears that both the parties were not conscious as to the figures which they quoted at the time of bidding. It is only when the bidding process came to an end, they realized that impracticable figures are quoted. Considering the fact that the process of biding has failed at one occasion, I am of the view that this is not a case where the parties should be called upon to bid in an open manner as was done in the past. At the same time, I am of the view that it would not be proper to allow bidding by an outsider because the area of the suit property is substantially large and if a third party is inducted in the suit property, one does not know how the matter would take turn at a later point of time, particularly when the plaintiffs and defendants are related to each other. 9. Keeping in view the aforesaid situation, I am inclined to arrive at an arrangement by which best amount can be fetched. It is required to be mentioned that as to what are the capabilities of a particular 7 person to utilize the suit property and exploite it for the purposes of commercial purpose i.e. letting out for marriage etc., will be best known to the respective parties. In the circumstances, it would be proper if the respective parties are directed to put in their figure on a sheet of paper in a sealed envelope and lodge the said envelope in the office of the Court Receiver and on a fixed date all the envelopes will be opened and the person who has mentioned maximum figure will be accepted and appointed as an agent of the Court Receiver. In my view, this arrangement meets the ends of justice. 10. The learned counsel for the plaintiffs informed the Court that on behalf of the plaintiff’s only one sheet will be placed and it will be also mentioned therein as to who shall be appointed as an agent of the Court Receiver. On an inquiry with the counsel for defendants, the Court was informed that on behalf all the defendants only one sheet would be filed and who should be appointed as agents of Court Receiver would be mentioned. The answers given by the counsels as stated above, are not to be treated to say that the parties have agreed to aforesaid arrangement. 11. Once the Court Receiver opens the packets, the party who has quoted highest amount per month shall be appointed as an agent of the Court Receiver, by fixing the said figure quoted by the said party as a royalty per month. Quantum of security deposit shall be decided by the 8 Court Receiver on usual terms. For the reasons mentioned aforesaid, I pass the following order. : ORDER : 1. The plaintiffs as one group and defendants as another group shall put in the amount which the respective group is desirous of paying per month as and by way of royalty. The said figure shall be mentioned on a sheet of paper giving therein short title of the suit with a remark as to who shall be appointed as agents of the Court Receiver with further remark that the said person shall deposit the said amount of royalty mentioned in the said sheet. 2. The said sheet shall be placed in an envelope duly sealed by the respective party and will be lodged with the Court Receiver on 21-01-2009 between 11.00 a.m. to 11.30 a.m. At 11.35 a.m., the Court Receiver shall open the envelopes in the presence of such of the parties who are present in his office. That party which has quoted maximum amount of royalty, shall be appointed as an agent of the Court Receiver and the amount quoted in the sheet shall be payable as monthly royalty. The Court Receiver shall enter into agreement of agency with such party as per normal procedure. He shall also fix the amount of security. 3. If only one packet is received by the Receiver, he shall open the same as mentioned above and appoint the said party as agent of Court 9 Receiver and it will be treated that other parties are not interested in getting appointed as agent of Court Receiver. 4. The notice of motion is disposed of in above terms with no order as to costs. 5. Since this order is passed in the presence of learned Advocates on both the sides, they need not wait for transcription of this order and they shall proceed to act on this order if they so desire. 5. The Court Receiver shall file a detailed report as to the job done by him as regards receipt of the respective envelopes and other related acts concerned in the matter. ( R.Y.Ganoo, J. )