: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 NOTICE NOTICE NOTICE OF MOTION NO. 733 OF 2008 OF MOTION NO. 733 OF 2008 OF MOTION NO. 733 OF 2008 IN IN IN SUIT SUIT SUIT NO. 3376 OF NO. 3376 OF NO. 3376 OF 2003 2003 2003 Fazlur Rehman Habib Khan. ... Plaintiff. V/s. Iqbal Hussain Habib Khan & Ors. ... Defendants. Mr. U.V. Singh for the Plaintiff. Mrs. G. Shah i/b. H.V. Kode for Defendant No.1. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 13TH 13TH 13TH JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . This is a Motion by the First Defendant and the request is that the Court Receiver, High Court, Bombay should be appointed as a receiver of the property mentioned at Schedule 1 of the suit premises. 2. The First Defendant in the affidavit in support makes a statement that the suit is filed for partition of the premises which are more particularly set out in the prayer clauses of the plaint and the basis upon which the plaint proceeds is that the Plaintiff and Defendant Nos. 1 and 3 are the joint owners of the same. 3. It is stated that the First Defendant and the Plaintiff are real brothers. It is stated that the Plaintiff claims Shop No.3 (suit property) as ancestral :2: property and it is also stated that Chamber Summons No.142 of 2007 was moved in Suit No.2954 of 2004. Similarly, Chamber Summons No.143 of 2007 was moved in the present suit seeking a relief that the properties which are ancestral be included in these Suits. The properties which are not included in the Suit filed by the Plaintiff No.1 which are claimed to be ancestral properties are listed at Exhibit ‘A’ to the affidavit in support of this Chamber Summons and it is prayed that Court Receiver be appointed of these properties also. It is stated that the Plaintiff is enjoying larger properties without passing on the benefit of the income therefrom to the First Defendant and his sisters. They are being looked after by the First Defendant from a meagre income. It is alleged that the Plaintiff has usurped all properties to himself and now seeks to deprive the family members from their share in the same. 4. I have heard the learned Counsel appearing for the First Defendant and the Plaintiff at some length. With their assistance, I have perused the Notice of Motion and the reply thereto. 5. It is an admitted position that the Court Receiver stands appointed in respect of Shop No.3 which is more particularly described in prayer clause (a) of the plaint. The Court Receiver is in possession of this Shop but none of the parties to the Suit have been appointed as an Agent :3: of the Receiver. Resultantly, the premises are vacant. Even the Society dues remains unpaid and this benefits nobody. 6. After the matter was argued for some time, the Plaintiff and the First Defendant agree that this Notice of Motion be disposed off by the following order :- (a) Without prejudice to the rights and contentions of both sides, it is directed that the Court Receiver shall appoint the First Defendant as an Agent in respect of Shop No.3, Jatan Co-operative Housing Society Ltd., Datta Mandir Road, Malad (East), Mumbai - 97 alongwith the open space surrounding it on the First Defendant executing an agency agreement with usual terms but without security. However, he shall deposit with the Court Receiver a sum of Rs.15,000/-. Defendant No.1 to execute the Agency agreement and deposit the above sum within a period of four weeks from today. (b) On the amount being deposited and agency agreement executed, the Court Receiver shall put the First Defendant in the possession of this Shop and the surrounding open space. The First Defendant shall pay the Society charges and outgoings from the date he is put in possession by :4: the Court Receiver. The Society dues shall be paid by the First Defendant on the Society raising a bill in respect thereof by payment to the Society directly or through the Court Receiver. On direct payment, he shall produce necessary documents evidencing payment. (c) As far as the arrears of the Society charges are concerned, it is agreed by both sides that the same are to the tune of Rs.2,14,402.90 ps. as on 30th April 2008. It is agreed by both sides that even after April 2008, till today, no payment has been made. It is agreed and undertaken by the First Defendant that he will clear the Society charges/arrears thereof till the date he is put in possession in instalments of Rs.3,500/- per month. The instalments shall be paid per month on 10th of each month to the Court Receiver who shall remit the sum to the Society. The first such instalment shall become payable on 10th May 2009 and the First Defendant shall continue to pay the same till the arrears are wiped off and cleared. (d) Needless to state that default in payment of Rs.15,000/-, or the Society outgoings per month as indicated above, shall entail and result in the agency agreement coming to an end forthwith and the Court Receiver should then take possession of the :5: premises from the First Defendant. The First Defendant undertakes to hand over possession thereof to the Court Receiver in case of default as noted above. (e) Needless to further state that if the Court Receiver resumes possession of the shop premises from the First Defendant, he shall then appoint the Plaintiff as his Agent on usual terms except security but the Plaintiff thereafter shall deposit with the Court Receiver a sum of Rs.10,000/- per month, which sum the Court Receiver should deposit in a Fixed Deposit with a Nationalised Bank and abide by further orders and directions in so far as disbursement is concerned. The sum as above shall be deposited till the Agency Agreement is in force. The amount must be deposited on 10th of every month. (f) Liberty to both parties to apply. 7. Mr. Singh, learned Counsel appearing for the Plaintiff after taking instructions from the Plaintiff, who is present in Court makes a statement that the Plaintiff is in possession of : (1) Flat No.3 & 4, Rooms Nos.10,11, 12 & 13 at : Geeta Ashram Bldg., Sai Deep Co-operative Housing :6: Society, Shivaji chowk, Malad (East), Mumbai - 97. (2) Shop No.153/3 Rajasthan Lime Depot, Khandwala Cross Lane, Varma Wadi, Daftary Road, Malad (East), Mumbai - 97. Two open spaces." Mr. Singh states that the Plainiff will not alienate, encumber, part with possession thereof or create third party rights therein in any manner, till the Suit is heard and disposed off. 8. The Notice of Motion is disposed off in the above terms. No order as to costs. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)