: 1 : rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3822 OF 2007 IN SUIT NO. 3349 OF 1989 Mr.Sunil Chetan Thadhani .. Plaintiff V/s. Mr.Haresh Chetan Thandani & Anr. .. Defendants ..... Mr.Tushar Bhavsar i/b.Ranjit & Co. for the plaintiff Ms.R.C.Nichani for defendant No.2 in support of Notice of Motion. Mr.Pankaj Kawli i/b.Ganesh & Co. for Defendant No.1. Mr.K.L.Vyas, Court Receiver present. ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 7th October, 2009. P.C. : This is a Notice of Motion seeking to proceed against the Plaintiff and Defendant No.1 in contempt for their alleged deliberate willful breach of the order dated 25th November, 2003 passed in Appeal No.918 of 2003 in Notice of Motion No.2654 of 2001. : 2 : 2. My attention is invited to paragraph 4 of the affidavit in support of the Notice of Motion, which is moved by the second Defendant. In paragraph 4, it is alleged that the second Defendant made a personal application so also written application on 28th March, 2007 to the Court Receiver to furnish him with a copy of the Statement of Accounts and that whether a sum of Rs. 2,50,000/- is lying with the Court Receiver or with any Bank Account. 3. It is stated that no reply is received from the Court Receiver's office, but the second Defendant is orally informed by his representative that there are no moneys lying with the Court Receiver in the suit account. It is further urged that the Plaintiff and Defendant No.1 has no right to disburse or withdraw any amounts lying to the credit of the suit. In view of the order of the Appellate Bench, it is alleged that the Court Receiver should not have allowed any such withdrawal or disbursement. It is stated that the second Defendant never allowed the Plaintiff and Defendant No.1 to withdraw the amounts lying with him. : 3 : 4. A further grievance is made with regard to use of the ground floor and first floor of the factory premises by M/s. Onida, who have been storing their goods therein. It is alleged that despite complaints to the Court Receiver, the Receiver has failed to take steps to check the aforesaid activities. 5. In reply affidavit of Defendant No.1 while dealing with paragraph No.4, it is stated that in compliance with order of the Division Bench, both the Plaintiff and Defendant No.1 have deposited with the Court Receiver the sum as directed by the Division Bench. 6. Further there are no withdrawals or no disbursement from the account maintained with the Court Receiver. 7. I have heard Ms. Nichani appearing in support of this Notice of Motion, Mr.Kawli for first Defendant, and Mr.Bhavsar appearing for the Plaintiff. 8. The order of the Division Bench directs the Plaintiff : 4 : and first Defendant to jointly deposit a sum of Rs.2,50,000/- with the Court Receiver within two weeks from the date of the said order. Across the Bar, it is stated that time has been subsequently extended. 9. I have called for an explanation from the Court Receiver and he is personally present in the Court. He stated that the amount of Rs.2,50,000/- has been deposited with him by the Plaintiff and Defendant No.1. However, as per the orders and directions of the Division Bench, the said amount was not invested in a Fixed Deposit. In any event, neither the Plaintiff nor the first Defendant are allowed to withdraw any sums. 10. The Court Receiver has made a statement after inspecting the record that no further deposit is made by the Plaintiff and first Defendant. However, from 12th January, 2004 to 7th October, 2009, the Court Receiver has disbursed the following amounts as statutory dues. He has paid Property Taxes and Land Revenue as under : Rs.2,21,073/- paid to the B.M.C.K/East ward on : 5 : 6th June, 2005 in respect of Property Tax. Rs.20,000/- paid to Tahsildar, Andheri on 2nd December, 2005 in respect of Land Revenue. 11. He states that as per the suit ledger account, there is a credit balance of Rs.77,463/- as on 7th October, 2009. Upon these aspects being brought to the notice of Ms. Nichani, she complains that till the date the second Defendant has not been allowed to verify or take any inspection of the documents in the office of the Court Receiver. She submits that in the absence of any verification or personal inspection, she would not be able to respond to the statement made by the Court Receiver. However, she states that on the date and time fixed by this Court, Ms. Nichani would go and inspect the records of the Court Receiver. The Court Receiver to allow inspection of the record and furnish xerox copies of the documents demanded by the second Defendant. 12. Having perused the order passed by the Division Bench and the affidavit placed on record, this is not a case for proceeding against the Plaintiff and Defendant No.1 for civil contempt. There is no case made out of any deliberate or : 6 : willful breach and violation of the order and direction of this Court. Within, the time as stipulated/extended, the amount has been deposited by the Plaintiff and Defendant No.1. Further Defendant No.1 who is present in Court stated that no rights have been created in favour of M/s. Onida, but, for a temporary period they were allowed to store their goods as the suit premises is a warehouse. He submits that no rights would be created in favour of any third party nor the premises would be disposed of until the present suit is pending in this Court. 13. In the light of the above, the Notice of Motion seeking to proceed in contempt against Plaintiff and Defendant No.1, is dismissed , but without any order as to costs. 14. At the request of the Plaintiff, post this suit for framing of issues on 10th November, 2009 along with Chamber Summons No.1153 of 2002. (S.C. DHARMADHIKARI, J.)