1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 512 OF 2009 IN SUIT NO. 3349 OF 1989 Sunil Chetan Thadani. ... Plaintiff. V/s. Haresh Chetan Thadani & Anr. ... Defendants. And Court Receiver, High Court, Bombay. Mr. Arif Bookwala a/w. Tushar Bhavsar i/b. Ranjit & Co. for the Plaintiff. Mr. Birendra Saraf a/w. Mahendra Rathod i/b. Ganesh & Co. for Defendant 1. Ms. R.C. Nichani for Defendant No.2. CORAM : S.C. DHARMADHIKARI,J. DATED : 12TH AUGUST 2009. P.C. :- This is a Notice of Motion by the Second Defendant in the Suit. The apprehension appears to be that the Court Receiver has entered into questions of title with regard to certain properties and more particularly, the one referred to prayer clauses (a) and (b) of the Notice of Motion. 2. In the affidavit in support of this Notice of Motion, it is contended by the Second Defendant that father of the original Plaintiff No.1 died and thereafter, the Second Defendant is impleaded as a party to the Suit. There is a Will of the father which is being relied upon in paragraph No.2 of the affidavit in 2 support and thereafter, it is urged that on 18th October 2001, the Plaintiff and Defendant No.1 have filed consent terms in Notice of Motion No.1255 of 1999 in this Suit, whereby an attempt is made to cover the properties which are more particularly described in prayer clauses (a) and (b) of the present Notice of Motion. Reliance is placed upon the consent terms and it is urged that they do not in any manner direct that the Receiver stands appointed of the property but the Minutes of the Order must be seen in the light of the specific understanding arrived at by parties based on which the terms were tendered. 3. Several issues are raised as to how the rights in respect of the property would revert to the Second Defendant through her father and how the said property does not constitute an asset of the firm. 4. I need not go into rival contentions which have been strenuously urged before me. While it is the case of Ms. Nichani, learned Counsel appearing for Defendant No.2 that the Receiver should refrain from calling upon the lessor Bombay Xaverian Corporation to make any payment, similarly he should not also interfere with the rights of the Second Defendant. 5. On the other hand, Mr. Bookwala and Mr. Rathod, learned Counsel appearing for the Plaintiffs and Defendant No.1 respectively urged that this Court has appointed a Receiver of 3 the properties and assets of the firm and it is not open to the Second Defendant to now state anything to the contrary and the Receiver was well within his rights to call upon the lessor to make the payments so that he safeguards the properties and assets of the firm. 6. When this Notice of Motion was placed before the Court earlier, an order has been made which was brought to my notice on the last occasion. That order seeks certain clarifications from the Court Receiver, High Court, Bombay with regard to the prayers in the present Notice of Motion and particularly whether the Court Receiver is receiving rent from the tenants who are occupying part of the property, whether the Court Receiver has been paying rent to the lessor and whether the Court Receiver has received since 2001, any sum towards rent of the property from partners of the firm or from the parties to the Suit. 7. The Court Receiver was directed to submit the report. The report is self-explanatory. The Court Receiver in specific answer to the queries raised by the Court as in paragraph 2 of his report clarified thus :- “2. The Court Receiver submits that as far as order at point (i) is concerned, upon scrutiny of ledger, it is reflected that this Registry has received rent from M/s. Unique Mechanical Works, 36-A, Mahal Industrial Estate, Mahakali Caves Road, Andheri (E), Mumbai for the period 4 commencing from 1st March 1992 to 30th April 2009 to the tune of Rs.35,859/- @ of Rs.2,089/- per annum pursuant to the order dated 9th March 1992 passed by this Hon’ble Court. Save except this amount, this registry has not received any rent. As far as order at point (ii) is concerned, the Court Receiver is not paying any rent in respect of suit properties to lessor – the Bombay Xaverian Corporation Ltd. since 2001. As far as order at point (iii) is concerned, the Court Receiver submits that Shri Sunil C. Thadani – Plaintiff and Shri Haresh C. Thadani – Defendant No.1 forwarded a cheque of Rs.71,00/- towards payment of lease rent to M/s. Bombay Xaverian Corporation Pvt. Ltd., in pursuance of the direction by the Court Receiver at a meeting held on 9th January 2009. (hereto annexed and marked as Exhibit “B” is a copy of minutes of meeting dated 9th January 2009).” 8. In my view, in the light of this report of the Court Receiver, no orders and directions need be issued as the matter is amply clarified. It is now for the parties to claim such reliefs as are permissible in law with regard to their rights in the subject properties. It would be therefore open for all parties to the Suit to adopt such proceedings as are permissible in law. All contentions with regard to the rights in the subject property of all parties are kept open. Equally, this Motion is not the remedy of the Second Defendant as well. By seeking a restraint against the Court Receiver and that too in 5 the present Suit which is filed for dissolution of the firm and accounts, the Second Defendant cannot obtain any declaration with regard to the leasehold rights or whether the said property is an asset of the partnership firm or not. It would be open for the Second Defendant to adopt appropriate proceedings. Notice of Motion disposed off accordingly. All contentions on merits are kept open. 9. Place the Suit for framing issues after two weeks. (S.C. DHARMADHIKARI,J.)