- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO.845 OF 2008 SUMMONS NO.845 OF 2008 SUMMONS NO.845 OF 2008 IN IN IN SUIT SUIT SUIT NO.4849 OF 1996 NO.4849 OF 1996 NO.4849 OF 1996 Kantilal Chhogmal and others ...Plaintiffs vs. M/s.Buildage Builders & Anr. ...Defendants Mr.Rajesh Jadhav for the plaintiffs Mr.B.H.Vyas for the defendant No.1. CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : OCTOBER 1,2008 : OCTOBER 1,2008 : OCTOBER 1,2008 P.C.: P.C.: P.C.: 1. Heard learned counsel for the defendants in support of the chamber summons and the learned counsel for the plaintiffs. 2. The notice of motion No.1337 of 2000 was taken out by the defendants in the present suit. By order dated 26th February 2001, this court appointed the Court Receiver, High Court, Bombay as the receiver of the suit property in terms of prayer clause (a) of the said notice of motion (excluding the bracketed portion). The Court Receiver was directed to take symbolic possession of the suit premises with a direction to appoint plaintiffs as the agents for being in possession of the suit premises on usual terms and conditions including the payment of royalty. The said order records that in case the plaintiffs do not come forward or are not in a position to comply with the terms and conditions of the agency, the court receiver shall appoint the first defendant as his agent to be in possession of the premises. This court directed that in - 2 - case the first defendant is to be appointed as an agent of the court receiver, the appointment would be on usual terms and conditions but without payment of royalty. 3. As per the said order, the plaintiffs were appointed as the agents of the Court Receiver. Initially, the Court Receiver fixed the royalty amount at the rate of Rs.2700/- p.m. A Chamber Summons was taken out by the plaintiffs being Chamber Summons No.48 of 2002 for reduction of the amount of royalty. The said Chamber Summons was dismissed by this court by order dated 1st April 2002. The said order passed on Chamber Summons was challenged by the plaintiffs by preferring an Appeal. A Division Bench of this Court by order dated 4th June 2002 allowed the Appeal partly and fixed the monthly royalty at the rate of Rs.1850/- p.m. 4. It appears that the plaintiffs committed default and therefore the Chamber Summons No.858 of 2004 and 1197 of 2004 were taken out by the defendants. The said Chambers Summons were disposed of by a common order dated 22nd February 2005. Perusal of the said order shows that there is a typographical error and the plaintiffs have been referred to as the defendants especially in paragraph (3) of the said order. It appears that the the plaintiffs committed default and therefore the Court Receiver Report No.17 of 2008 was submitted by the Court Receiver before this Court. On 6th February 2008, this court passed an order on the said report - 3 - recording that the plaintiffs have committed default in payment of royalty amount from August 2007 onwards. By the said order, this court permitted the Court Receiver to appoint the first defendant as his agent subject to usual terms and conditions. 5. Thereafter, an order was passed on 19th April 2008 by the First Assistant to the Court Receiver by which the royalty amount payable by the 1st Defendant was fixed at the rate of Rs.8,000/- p.m. The present Chamber Summons has been taken out by the defendants for setting aside the said order dated 19th April 2008. 6. The learned counsel for the defendants in support of the Chamber Summons has invited my attention to the order dated 26th February 2001 passed on Notice of Motion No.1337 of 2000 by which this Court directed that in case the plaintiffs commit any default, it will be open for the Court Receiver to appoint the first defendant as his agent on usual terms and conditions but without payment of royalty. He submitted that the said order has attained finality and therefore, only because in order dated 6th February 2008 passed on the Court Receiver’s Report, earlier order is not reproduced, the 1st Defendant is not laible to pay any royalty, as the order dated 26th February 2001 has attained finality. Without prejudice to the rights and contentions of the first defendant, he submits that the first defendant is ready and willing to pay - 4 - the monthly royalty at the rate of Rs.1850/-, which was the amount due and payable by way of royalty by the plaintiffs in view of the order passed by the Division Bench of this Court. The learned counsel for the plaintiffs submits that the order dated 6th February 2008 passed by this Court permits the Court Receiver to appoint the first defendant as his agent subject to usual terms and conditions and the usual terms and conditions will include the payment of royalty. 7. Perusal of the order passed by the Court Receiver shows that he has proceeded to fix the royalty as the order dated 6th February 2008 does not record that the first defendant will be appointed as an agent without payment of royalty. 8. I have carefully considered the submissions. It is true that the order dated 26th February 2001 clearly records that the first defendant will be appointed an as agent of the Court Receiver on usual terms and conditions but without payment of royalty. The said order has not been modified till today. However, while passing the order on the Report of the Court Receiver on 6th February 2008, this court has permitted the Court Receiver to appoint the first defendant as his agent subject to usual terms and conditions. In the said order, this court has not mentioned that the first defendant is not liable to pay royalty. 9. Thus, as the position stands today, both the orders passed - 5 - on 26th February 2001 and 6th February 2008 have attained finality. In the order dated 26th February 2001 it is recorded that the Court of Small Causes in a suit filed by the defendants for eviction had directed the plaintiffs to deposit certain amounts and the said amounts have not been deposited by the plaintiffs. That is the reason why the Court Receiver was appointed at the instance of the first defendant. The first defendant without prejudice to his rights and contentions is ready and willing to pay royalty at the rate of Rs.1850/- p.m. The said amount was being paid by the plaintiffs as royalty under the orders of the Division Bench of this Court. Considering the reasons recorded in order dated 26th February 2001 and considering the peculiar facts of the case, the royalty fixed by the Court Receiver deserves to be reduced to Rs.1850/- p.m. To that extent, the order of the Court Receiver needs modification. 10. Hence, the Chamber Summons is disposed of by passing the following order : i) The order dated 19th April 2008 passed by the Court Receiver is modified by directing that the first defendant is liable to pay royalty amount at the rate of Rs.1850/- p.m. ii) If any amount is already paid by the first defendant towards royalty in terms of the order dated 19th April 2008, the first defendant is entitled to necessary - 6 - adjustment. iii) Parties and the Court Receiver to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE