: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3670 OF 2007 IN SUIT NO.998 OF 1985 Shahnaz S. Mistry & Ors. ....Plaintiffs V/s. Liequat Munir Ahmed Mistry & Ors. ....Defendants Mr.Anjan Amin i/b M/s.Amin & Co. for the Plaintiffs. Mr.Das Gupta i/b M/s.Jhangiani, Narula & Associates for Defendant Nos.1 to 3. CORAM : S.J. VAZIFDAR, J. DATED : 14TH JULY, 2008. P.C. : 1. By this Notice of Motion the Plaintiff seeks the appointment of a Receiver in respect of the machineries and the premises. 2. In an earlier Notice of Motion being Notice of Motion No.883 of 1985, Defendant Nos.1 to 3 gave an undertaking that pending the hearing and final disposal of the suit, they will not part with possession of or create any third party rights in the suit machineries or suit premises and that they would not damage the machineries. They further undertook to deposit Rs.500/- per month on or before 10th day of each month commencing from 10.12.1985. : 2 : 3. By an order dated 10.12.2007, the Commissioner was appointed to make a report in respect of the machineries lying in the suit premises. 4. The Court Commissioner accordingly made a report. 5. As far as the machineries are concerned, the Plaintiff is entitled to have the machineries sold. The Defendants themselves admitted before this Court at the ad-interim stage that the machineries had lost their value and are of scrap value. Further as noted by the Commissioner, the Defendants themselves alleged that the machineries have not been used since 1992. In these circumstances, there is a clear case of waste. It would be in the interest of all the parties to sell the machineries and to deposit the sale proceeds in this Court. As far as the premises are concerned, no further orders are called for. The only undertaking was not to part with possession of the suit premises. 6. It is alleged that the amount of Rs.500/- per month has not been deposited. It is difficult from the record before me to ascertain whether any amounts are outstanding and if so the quantum thereof. This : 3 : exercise must be undertaken by the office. 7. In the circumstances, the Notice of Motion is disposed of by the following order :- i). The Court Receiver, High Court, Mumbai shall take possession of the machineries listed in the Commissioner’s report and sell the same. ii). The sale proceeds shall be deposited in this Court and the same shall be invested in fixed deposit of a nationalized bank initially for a period of three years and thereafter for like periods of three years each. iii). The question as to whether the Defendants were liable for damage caused to the machineries is kept open. The Plaintiff is at liberty to adopt appropriate proceedings for the same which will be heard along with the suit. iv). Office to ascertain whether the amounts of Rs.500/- per month have been deposited as per the order dated 7.11.1985. The : 4 : Defendants shall pay the outstanding amounts to the office within twelve weeks from today with interest at the rate of 12% p.a. from the dates on which the outstanding amounts were due on month to month basis. v). The costs of the Commissioner shall be paid equally by the Plaintiff on the one hand and by Defendant Nos.1 to 3 on the other in the first instance and as directed by the order dated 10.12.2007. The amount shall not include other expenses such as costs of photographer and transportation charges etc. which shall also be paid equally by the said parties.