1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 743 OF 2009 IN SUIT NO. 1808 OF 2006 A/W COURT RECEIVER’S REPORT NO.299 OF 2009 Ravinder Silk Factory & Anr. ...Plaintiffs. Vs. Shakila Ansari & Anr. ...Defendants. ---- Mr. Piyush Shah, for the Plaintiffs. Mr. Mehul Shah, for the Defendants. Mr.G.G. Ketkar, First Asstt. to Court Receiver. CORAM: R.Y. GANOO, J. DATED : 31st MARCH, 2010 P.C. 1. By an order dated 17.2.2009 passed by the First Asstt. to the Court Receiver, quantum of royalty @ Rs.90,000/- per month has been fixed. This order dated 17.2.2009 passed by the First Asstt. to the Court Receiver is sought to be quashed. 2. I have heard learned Advocates on both sides. Perused the text of the order dated 17.2.2009. The area in possession of the Defendants as an agent of the Court Receiver appears to be 5102 sq.ft. It is also seen on the basis of the text of the order dated 17.2.2009 that a part of the area is covered by a structure and the present Defendants are carrying on certain 2 commercial activity in the said structure. The Court Receiver has fixed the royalty @Rs.90,000/- p.m. purely on the basis of valuation of the land in question and not on the basis of user of the land by Defendants. It is to be noted that substantial portion of the land occupied by the Defendants is admittedly vacant and not used for residential or commercial purpose. It is in these circumstances the fixing of royalty @ Rs.90,000/-p.m. only on the basis of market value is improper and as such I am inclined to set aside the order dated 17.2.2009 on that ground itself. At the same time it is to be noted that Defendants through their Advocate submitted before the concerned Officer of the Court Receiver that royalty be fixed @ Rs.20,800/- p.m. This would definitely mean that the Defendants had no objection if the royalty amount is fixed @ Rs.20,800/-p.m. Hence, I am inclined to set aside the order dated 17.2.2009 and direct the Court Receiver to hear the parties again and refix the quantum of royalty. The Defendants will have to pay royalty @Rs.21,000/- p.m.(rounded of Rs.20,800/-)being interim royalty till the proper/final royalty is fixed. The Defendants will have to pay interim royalty @ Rs.21,000/- p.m. with effect from 11.9.2007. So far as royalty for the period from 11.9.2007 till 31.3.2010 is concerned, whatever arrears are due, same will have to be deposited by the Defendants in the Office of the Court Receiver on or before 15th June, 2010, and Defendants will have to pay royalty as aforesaid from April, 2010 onwards till the final royalty is fixed. First installment of the royalty will be payable on or before 3 12.4.2010. Court Receiver will have to give hearing to both sides, collect necessary material from the parties or otherwise, ascertain the actual area used by the Defendants for residential/commercial purpose, ascertain the nature of activity carrying on the land and then fix the royalty. 3. In view of above, I pass the following order disposing of the Chamber Summons. ORDER i) The Order dated 17.2.2009 passed by the First Asstt. to the Court Receiver is set aside. The matter concerning the fixation of quantum of royalty is remanded to the Court Receiver. The concerned Officer of the Court Receiver shall give hearing to both the parties. The concerned Officer shall ascertain by collecting the material from both the parties or otherwise the actual area which is being used by the Defendants, the nature of the user i.e. residential or commercial, the nature of activity and other aspects of the matter and then fix the royalty by giving reasons. ii) Rs.21,000/- is fixed as interim royalty. Interim royalty from September 2007 upto 31st March 2010 be deposited with the Receiver on or before 15th June, 2010. Installment for the month of April 2010 onwards be deposited in the office of the Court Receiver on or before 12th April, 2010. iii) Court Receiver shall comply with the order as regards determination of the royalty a fresh as expeditiously as possible. iv) Learned Advocates for both parties assured this Court that they 4 shall co-operate with the Court Receiver in the matter as regards fixation of royalty by the Court Receiver. v) It is clarified that if this order regarding payment of arrears is not complied with by the Defendants, Court Receiver to take possession of the property in question from the Defendant without further order from the Court. So fas the payment of installment from April, 2010 if Defendants commit any two defaults, Court Receiver to take possession of property without reference to the Court. vi) The Court Receiver’s Report is disposed of accordingly. (R.Y. GANOO, J.)