1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1395 OF 2008 IN EXECUTION APPLICATION NO.282 OF 2003 IN AWARD DT.29TH MAY 2001. Mr.Babubhai Thiba .. Plaintiff Versus Rafique Sarang .. Defendant and Jagdist Singh Chabra & Anr. .. Applicants Mr.A.P.Rege for applicant No.2 Mr.D.D.Singh for applicant No.1 Mr.R.R.Verma for plaintiff Mr.D.V.Deokar, 1st Asstt.to C.R. CORAM : S.C.DHARMADHIKARI, J. DATE : 8th December 2008 P.C. . The present chamber summons prays that the second applicant be appointed to act an an agent of the private receiver in respect of the premises, viz., 116-A more particularly described therein. 2 2. The relief is claimed on the basis that the applicant, Jagdish Singh Chabra had admitted that the second applicant acquired portion of the above premises in or about 1988. They were acquired under leave and licence arrangement from defendant. There is a claim which is made by second applicant of tenancy but the same is denied. The defendant Jagdish had admitted the claim that husband of the second applicant, till his lifetime and after his death and, thereafter second applicant along with her son is in use, occupation and possession of this premises. 3. However, it is Jagdish’s case that he has not executed leave and licence agreement which is Exh.A to the chamber summons. There is an affidavit in reply which is filed in this chamber summons on behalf of the plaintiff, wherein it is stated that the execution proceedings have been filed in the year 2003 and the property in 3 question has been attached. However, the same could not be sold as applicant No.1 had taken out chamber summons No.27 of 2007 claiming certain rights in respect of the premises. However, an order was passed on this chamber summons on 27th January 2007. It is the case of plaintiff that the defendant Rafique is liable to pay to the plaintiff a sum of Rs.43,59,000/-, more particularly stated in the award and till the time the payment is made, the security offered for the premises including the one in question shall be entitled to be placed at the disposal of the plaintiff soas to recover the amount by disposing off the same. It is stated that the applicants are raising obstruction to the premises being sold and for some reason or the other the Award remains unsatisfied. It is contended that now a second obstacle is sought to be raised. There are specific pleas taken by the plaintiff and he has denied the arrangement that are pleaded by the second applicant. 4 4. With a view to satisfy myself as to whether the second applicant is really in possession of the suit premises as claimed, I have called upon her to file affidavit and an affidavit is now filed by her constituted attorney one Angad Singh Rajinder Singh and the affidavit is affirmed on 3rd December 2008. All it claims that applicant No.2 is in possession and occupation of the premises bearing No.116-B as more particularly described therein and she has filed number of documents to evidence her physical possession. 5. After the matter was argued for some time, both sides do not dispute that the second applicant is in possession of the premises viz., 116-A and she gives up her claim of tenancy, but would be satisfied if she is allowed to occupy the same until the dispute between the plaintiff and the first applicant is resolved in terms of 5 order dated 9th January 2008 in Chamber Summons No.27 of 2007. In other words, till the chamber summons No.27 of 2007 is disposed of by this Court, second applicant be allowed to use and occupy the portion of the premises bearing No.116-A on such terms and conditions as this Court may deed just and proper. 6. After this matter was further heard, Mr.Rege appearing in support of this chamber summons states that the applicant would pay to the private receiver, without prejudice to the rights and contentions of the applicant, a sum of Rs.15,000/- per month towards royalty/ occupancy charges and such amount shall be paid by her with effect from 1st February 2008 and until the above chamber summons No.27 of 2007 is disposed of. Mr.Verma appearing for the plaintiff is agreeable to the above arrangement. 7. In these circumstances, present chamber 6 summons is disposed of with the following order:- (a) Private Receiver not to obstruct physical possession of the second applicant in premises No.116-A provided she acts as his agent on execution of agency agreement which shall be done within two weeks from today; (b) The second applicant to pay from 1st February 2008 royalty/ occupancy charges quantified at Rs.15,000/- per month; (c) Arrears with effect from February 2008 till December 2008 to be paid within twelve weeks from today; (d) The second applicant shall pay from 1st February 2009 a sum of Rs.15,000/- and such amount shall be paid 7 first of every succeeding month until the Chamber Summons No.27 of 2007 is disposed of; (e) Any default in payment of arrears or subsequent payment shall entail in the agency/ arrangement above recorded being treated as cancelled forthwith and thereafter, the private receiver would be at liberty to take physical possession of the premises and hand them over to the Sheriff of Mumbai for selling the same in accordance with law. Attachment levied on this premises to continue till disposal of the chamber summons as well. (f) In addition, Mr.Rege states that the applicant will file an undertaking in this Court within one week from today stating in clearest terms that she undertakes to vacate the premises as and 8 when called upon by the private receiver. Needless to state that the private receiver can call upon the second applicant to vacate the premises only in the event of the defaults as enlisted above; (g) All amounts to be deposited by the second defendant in this Court by pay order and the said amount be invested by the Prothonotary & Senior Master in F.D. of any nationalised bank; (h) Chamber summons disposed of; (S.C.Dharmadhikari, J)