1 crr208-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Court Receiver’s Report No.208 of 2009 . in Suit No. 2398 of 1992 M/s.Navyug Dal Mills & Ors. .. Plaintiffs v/s. M/s.Satyam Enterprises ..Defendants Mr.Shailesh Shah i/b. Madhukar Munim & Co. Advocate for the Plaintiffs. Mr.R.V.Govilkar i/b.J.K.Hegde, Advocate for the Defendant No.1 Mr.P.g.Karande i/b. Vivek Sharma for the Defendant No.2 Mr.Ketkar, 1st Associate to Court Receiver. CORAM : R.Y.GANOO, J. DATED : 5th August , 2010 P.C. : 1. Heard Learned Counsel Mr. Shah for the plaintiffs. Mr.Govilkar for the defendant No.1 and Mr. Karande for the defendant No.2. At the time of appointment of defendant no.1 as Agent of Court Receiver, the 2 crr208-09.sxw structure was put in his possession. Similarly, certain machinery and other items were also put in possession of defendant no.1. The Court Receiver’s report mentions that after the Court Receiver carried out the inventory as regards the existence of certain items which were put in possession of defendant no.1 and the status of the structure, he observed that certain items were missing and the structure was in shambles. The Court Receiver rightly expected that the structure should be restored to a reasonable extent. The Receiver appointed Mr.Jayant Tipnis as valuer and asked him to ascertain the nature of the work to be carried out and submit estimate valuation in regard to items lost or also carried out. The said estimate as to the tune of Rs.25,00,000/-. 2. As against this, defendant no.1 appointed his own Architect and came to the conclusion that certain items of work for reconstruction are required to be carried out. They are five in number and the cost of the same is estimated to Rs.10,25,000/-. 3. Learned Counsel Mr. Karande appearing on behalf of defendant no.2 submitted that since the suits are filed in the court of Small Causes 3 crr208-09.sxw against the plaintiff as well as the defendant no.1, if this court passes an order of reconstruction of the structure, that should not cause prejudice to the defendant no.2 in his suits and neither plaintiffs nor defendant no. 1 should be permitted to put up their rights contrary to what are already claimed by plaintiff and defendant no.1. He submitted that if at all the court is inclined to grant reconstruction, appropriate order should be passed. 4. After having hearing counsels on both sides, it is noticed that Architect of defendant No.1 has indicated that the cost of five items would turn out to be Rs.10,25,000/-. If this is so, certainly it would not be possible for the defendant no.1 to say that the amount less than Rs. 10,25,000/- is required. Nodoubt, attempt was made by the learned Counsel for the defendant no.1 to submit that the status of the structure which was handed over to the defendant no.1 at the time when he was appointed as agent of the Court Receiver is very relevant i.e. in a way he wanted to suggest that today one may not be able to reconstruct the complete new structure. Certainly that is not the idea which was passing in the mind of Court Receiver. The very fact that the Architect 4 crr208-09.sxw has given the details of the work to be carried out means the defendant no.1 should carry out certain work, the cost of which is Rs.10,25,000/-. With this, defendant no.1 now cannot avoid reconstruction. In view of the above, I am inclined to put defendant No.1 to terms as regards these expenses. Since the work will have to be carried out by a Civil Contractor, the payment of such Civil Contractor will have to be protected. At the same time, it will not be proper to allow the defendant no.1 to say that he will carry out the work as and when he pleases. In my view, it would be proper if defendant no.1 is directed to deposit in this court the sum of Rs.10,50,000/- so that as and when the contractor is appointed, he can be paid out of said fund. This will protect the interest of all concerned including defendant no.1. In so far as cost of missing items, learned Counsel Mr. Govilkar submitted that the report given by the Court Receiver’s Architect is on the higher side looking to the various items which are alleged to be misplaced. I have gone through the list and as of today without deciding the matter finally, I am of the view that defendant no.1 should be directed to deposit in this Court a sum of Rs.25,000/- on ad-hoc basis so that his bonafides can be tested and the actual loss can be computed at the later point of time. 5 crr208-09.sxw 5. Needless to mention that if the defendant no.1 fails to deposit the aforesaid two amounts he can’t continue as agent of the Court Receiver. Looking to the quantum of monies which the defendant no.1 is inclined to deposit, I am inclined to grant about three weeks time to defendant no.1 to deposit the monies. Hence following order is passed. ORDER i. The defendant no.1 is directed to deposit in this Court a sum of Rs.10,25,000/- on or before 23.8.2010. Similarly, defendant no.1 is directed to deposit Rs.25,000/- on or before 23.8.2010. The defendant no.1 is free to appoint Civil Contractor of his choice so that the items of work cited in the Architects report dated 23.5.2010 can be attended to. The Civil Contractor of the defendant no.1 shall contact the Court Receiver. The Court Receiver and the Civil Contractor shall determine whether for the purpose of carrying out any work as set out in the report dated 23.5.2010 permission from any of the Competent Authorities such as Mumbai Municipal Corporation, State of Maharashtra, BEST are required. If such a permission is required, the Receiver shall apply for 6 crr208-09.sxw the same on behalf of the defendant No.1 and since the work is being carried out for and on behalf the Court by the defendant no.1, no formal permission from the landlord is required as the Receiver himself will satisfy that the work which will be carried out will not be in excess of the one which was in existence at the time when the premises were put in possession of defendant no.1. If such permissions are necessary as and when such permissions are obtained, and the Civil Contractor of the defendant no.1 shall proceed to carry out the work. As and when he carries out the work he will submit the running bill to the Receiver. The Receiver shall confirm the items of the job done and then the said bill will be submitted to the office of this Court and monies in terms of the said running bill shall be paid by the office without raising any dispute from Rs.10,25,000/-. Since the work is going to be carried out under the supervision of the Court Receiver, the defendant shall arrange to engage such contractor who will perform some job and then receive the monies. The request of the Counsel for the defendant no.1 to release some advance need not be granted because there is every possibility that the Civil Contractor may receive advance and refuse to carry out the work and thus there will be further complications. It is clarified that the 7 crr208-09.sxw repairs/reconstruction shall not enure to the benefit of defendant No.1 plaintiff prejudice or the litigation which has been initiated by the defendant no.2 in the Court of Small Causes as the nature of the work order to be carried out is purely arising out of the fact that today the condition of the structure is not the same in which defendant no.1 was put in possession. The sum of Rs.10,25,000/- shall be appropriated in the aforesaid manner. If any further money is required, Counsel of defendant no.1 on behalf of his client undertakes to see that the deficit shall be made up to see that the work as per the five items, is carried out. The sum of Rs.25,000/- which are ordered to be deposited shall remain in the court subject to final outcome of the matter. 7. It is clarified that if defendant no.1 does not comply with this order as regards deposit of Rs.10,25,000/- and other Rs.25,000/-, the agency of the defendant No.1 as court Receiver’s Agent shall come to and end without further orders from the Court and on or after 24.8.2010 the Receiver shall remove the defendant no.1 from the premises in question and then apply to the Court for appropriate order. As and when defendant no.1 deposits monies in this Court as aforesaid, he shall 8 crr208-09.sxw supply to the Court Receiver proof for having deposited the said money so that further steps can be taken in the matter. 8. Report stands disposed of in above terms. [R.Y.GANOO, J.]