IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.132 OF 2008. CHAMBER SUMMONS NO.132 OF 2008. CHAMBER SUMMONS NO.132 OF 2008. IN IN IN SUIT NO.3940 OF 2002. SUIT NO.3940 OF 2002. SUIT NO.3940 OF 2002. M/s. D. Vasantrai & Co. ..Plaintiffs versus Jayantilal M. Jain ..Defendant Ms.Yasmin Tavaria for the Plaintiffs in support of the Chamber Summons. Mr.N.N.Vaishnava for the Defendants CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 15th December, 2008. DATED : 15th December, 2008. DATED : 15th December, 2008. P.C. 1. This Chamber Summons is taken out by the plaintiffs so as to have the plaintiffs appointed as the Agent of Court Receiver after taking possession of the suit premises and for a direction that the defendant should deposit the arrears for the period 5.5.2006 to 31.1.2008. Parties have completed the pleadings. 2. I have heard learned advocates on both the sides. The Appellate bench of this Court had directed the defendant to deposit the sum of Rs.3,35,000/- within eight weeks from 5.5.2006. That Order has been complied with. Thereafter, the -2- Court Receiver conducted exercise of fixing the royalty and by Order passed by the Court Receiver on 18.10.2007 the Court Receiver fixed the royalty at Rs.25,000/- per month and the Court Receiver addressed a letter to the defendant’s advocate calling upon the defendant to pay the royalty for the period 5.5.2006 to 31.1.2008 within 15 days from the receipt of the said letter. The defendant claims that he received the said letter in the month of November 2007, and according to him the time to deposit the money was upto 10.12.2008. The defendant, with a view to quash and set aside the Order dated 18.10.2007 took out Chamber Summons No.1934 of 2007 and made an application for ad interim relief. However, no interim relief was granted by Order dated 10.12.2007. 3. Thereafter, a meeting took place before the Court Receiver and by Order dated 28.1.2008 Court Receiver directed that the arrears to be paid on or before 8.2.2008. It is required to be mentioned that the present Chamber Summons was taken out by the plaintiffs on 25.1.2008 so as to see that the arrears are deposited and the plaintiff is appointed as Agent of the Court Receiver after -3- taking possession of the premises. 4. It is seen that the defendant by letter dated 7.2.2008 delivered a cheque to the Court Receiver for Rs.6,25,000/-. According to plaintiffs, when inspection of the record was taken, such amount was not received by the Office of the Court Receiver and that is how the correspondence was entered into on behalf of the plaintiffs with the office of the Court Receiver. According to the plaintiffs, monies were not paid till about 11.2.2008 and this fact was informed to the Court Receiver’s Office by letter in writing. The Court Receiver’s Office has prepared a report stating therein that the cheque received on 7.2.2008 remained to be attended and that is how the Court Receiver has come out with an explanation. Today, in the course of hearing of the motion, I had called the Officer of the Court Receiver to produce the Inward Register of the concerned person who receives the cheques. I found entry at serial No.13 concerning the cheque sent by the defendant for an amount of Rs.6,25,000/-. If this is the position, the defendant has complied with the Order dated 28.1.2008 by which the -4- defendant was directed to deposit the monies by 8.2.2008. 5. The question before the Court is whether the Court Receiver had power to grant time to defendant to pay monies on or before 8.2.2008. This question will have to be answered in the light of earlier developments which had taken place in as much as the royalty amount was fixed by the Court Receiver by Order dated 18.10.2007 and had called upon the defendant’s advocate to pay of the said amount within the period of 15 days from the receipt of the letter by which the Order was communicated to him. It is true that in the Order dated 18.10.2007 no specific time was mentioned within which the said royalty was to be paid. Forwarding letter dated 13.11.2007 sent to advocate for defendant stated that time of fifteen days was granted to pay the monies. The defendant claims that this letter was received by his advocate on 21.11.2007 and that is how the process of payment was put into action. One thing is required to be noted that the Court Receiver’s letter dated 13.11.2007 was addressed to the advocate for the defendant and hence some time must have been taken -5- to communicate this news to the defendant by the advocate for the defendant. 6. After having given careful thought to the entire matter, I am inclined to observe that when the question as to the fixing of royalty was left to the Court Receiver and when there was no specific order passed by the Court as to within what time the amount should be paid once the royalty is fixed, the time schedule for payment of royalty ought to be left to the Court Receiver, provided the time given to pay up the royalty fixed by the Court Receiver is reasonable. In my view for orders of such nature, it is not necessary for the Court Receiver or parties to approach the Court every now and then to seek clarification/orders from the Court. The only point the Court Receiver has to take into consideration is that the person who is liable to pay the royalty is asked to pay the royalty within a reasonable time. 7. In the present case, as per the Order fixing the Royalty, the arrears turned out to be 6,25,000/-. The plaintiffs appeared before the Court Receiver, and the Order dated 28.1.2008 shows -6- that respective stands were put up before the Court Receiver and that is how the Court Receiver passed a conditional Order. In my view, the Court Receiver can’t be said to have erred in granting time to the defendant to pay up the arrears particularly because the Order dated 28.1.2008 was conditional i.e. to say if the defendant was to fail in making the payment, the appointment which was fixed for taking the possession of the suit premises from the defendant on 12.2.2008 was to proceed. 8. In so far as the case of the plaintiffs that the cheque for Rs.6,25,000/- was not deposited till 11.2.2008, I am not inclined to accept the said stand, when the register maintained by the Court Receiver shows that on 8.2.2009 in the account of the defendant a cheque for Rs.6,25,000/- was shown to have been entered into and on the office copy of the letter addressed to the Court Receiver, endorsement of the Court Receiver is found dated 7.2.2008 in token of having received the forwarding letter and the cheque. I am saying so on the basis of the office copy which was produced before the Court by the learned Counsel -7- for the defendant. 9. Some submissions were made by the learned Counsel for the plaintiffs that there was some bungling in the office of the Court Receiver and a false record is sought to be created in the Office of the Court Receiver in the matter of receiving the cheque on 7.2.2008. In so far as this aspect is concerned, I am not inclined to accept such stand because the register which is maintained and produced before the Court, which is titled as "Inward Cheque Register - 5.2.2008" is maintained in a clean and neat manner and so far as the concerned date, namely 8.2.2008 there are no interpolations or addition near about the entry where the entry of the concerned defendant appears. Hence, I am not inclined to doubt the veracity of maintenance of this register and consequently the stand of the Court Receiver’s Office that the cheque was received on 7.2.2008 is required to be accepted. In the last column signature of one person appears with the date 12.2.2008. I was told in the Court by the Officer of the Court Receiver that the said signature is of the staff concerned who used to attend to the suit. This Court is not -8- now concerned as to what happens in the Office of the Court Receiver once such cheque is received from the defendant. The Court is required to see whether the cheque was duly received by the Court Receivers Office on a particular date. The endorsement dated 7.2.2008 on letter of defendant’s advocate dated 7.2.2008 and entry in the inward register on 8.2.2008 goes to show that cheque for Rs.6,25,000/- was deposited in the Court Receiver’s Office on 7.2.2008. In such circumstances, the stand of the plaintiffs that some bungling had taken place in the Office of the Court Receiver is required to be rejected. If this is the view I have taken, it is clear that the defendant did comply with the order dated 28.1.2008 as the said cheque has been subsequently cleared. 9. I am informed that the defendant had subsequently deposited the arrears in time and there is no grievance about it. If this is the position, I am inclined to observe that the plaintiffs have failed to make out a prima facie case so as to say that the defendant has not complied with the order. -9- 10. For the reasons mentioned aforesaid, I am inclined to dismiss the Chamber Summons with no Order as to costs. Hence the Order. ORDER 1. Chamber Summons is dismissed with no order as to costs. 2. In future, as and when the defendant deposits in the Office of the Court Receiver, the cheque/Pay Order for the royalty amount along with the forwarding letter, the defendant shall forward the xerox copy of the said letter as well as the copy of the said cheque/Pay Order duly receipted by the office of the Court Receiver i.e. to say on the said letter stamp of the Office of the Court Receiver shall appear for having received the letter along with the cheque. This should be done by the defendant soon after the cheque and the said letter is delivered in the Office of the Court Receiver so that the plaintiff would be able to keep track of the payment. 3. Suit is expedited. Adjourned to 21.1.2009 -10- for directions. 4. After the aforesaid Order was passed, the learned Counsel for the plaintiffs pointed out that there is no time limit within which every month’s royalty is to be paid by the defendant. I have heard the learned Counsels on both the sides and they agree that some time limit is required to be fixed within which the royalty for the month is to be paid. Considering the amount of royalty, it is hereby ordered that the royalty for the respective month shall be deposited with the Court Receiver on or before 10th of the respective month. i.e. to say the royalty for the month of January 2009 shall be deposited on or before 10th January 2009 and the royalty for the subsequent months be deposited accordingly. This is being stated because the royalty upto December 2008 is cleared. 5. If 10th day of the respective month happens to be a Sunday or holiday, the royalty should be paid on the next working day. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)