1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.37 OF 2010 IN SUIT NO.4913 OF 2000 Majid Ahmed Oomerbhoy .. Plaintiff. Vs. Rashid Sattar Oomerbhoy & Ors. .. Defendants. And The Court Receiver, High Court, Bombay & Anr. .. Respondents. Mr.Z.A.Jariwalla i/b Thakore Jariwalla & Associates for the plaintiff. Mr.Rahul Narichania i/b Desai, Desai & Carimjee for defendant no.1 in support. Mr.Shailesh Thakkar i/b Shailesh Thakkar & Co. for defendant no.6 and respondent no.2 to show cause. Mr.N.A.Bandodkar, 2nd Asst. to Court Receiver is present. CORAM : R.M.SAVANT, J. DATED : APRIL 5, 2011. PC: 1. By the above Chamber Summons the applicant i.e. defendant no.1 seeks the following reliefs: “(a) that Respondent No.1 be directed to re- determine the final royalty to be paid by Respondent No.2 (as the agent of Respondent No.1) as regards two properties of the Suit Firm, namely:- (i) Flat no.12A on the 6th Floor of Nariman Point Building Co-operative Housing Society, Nariman Point, Mumbai; and S 2 (ii) Flat no.501 in Cupid Apartments, Santacruz, Mumbai, in accordance with the Judgment dated August 29, 2009 passed by this Hon’ble Court in Chamber Summons No.1771 of 2008 in the present Suit, within a period of four weeks or such other time as this Hon’ble Court deems fit.” 2. The properties in question which are mentioned in item no.(i) and (ii) of the prayer clause (a) are of the ownership of respondent no.2 herein the firm of which dissolution is sought in the above suit, claims to be tenant of the property. The property is in possession of the Court Receiver and respondent no.2 has been appointed as the agent of the Court Receiver. Defendant no.1 being aggrieved by royalty fixed by the Court Receiver in respect of the said two properties had filed chamber summons no.37 of 2006, which the learned Single Judge of this court by order dated 15.1.2007 had allowed the said chamber summons and directed the Court Receiver to re-fix the royalty for the premises in question. Inspite of the said order dated 15.1.2007 no steps were taken by the Court Receiver. Hence for implementation of the said order the applicant herein was constrained to file chamber summons no.1771 of 2008. The Respondent no.2 herein had approached the Apex Court 3 challenging the order passed by a Division Bench of this court confirming the appointment of the Court Receiver. The SLP filed by respondent no.2 herein came to be dismissed by the Apex Court vide order dated 2.1.2008, however, whilst dismissing the said S.L.P. the Apex Court expedited the hearing of the suit. As the hearing of Chamber Summons no.1771 of 2008 the aforesaid conspectus of facts were before the learned Single Judge (S.J.Kathawalla, J.). The learned Judge had also noted the order passed by the Apex Court dated 2.1.2008. The learned Judge was of the view that there was no justifiable reason for the Court Receiver not to carry out exercise of refixing the royalty in respect of the properties mentioned in prayer clause (a). The learned Judge thereafter held that the court receiver is bound to abide by the order dated 15.1.2007 passed in Chamber Summons no.37 of 2006 and in view thereof issued the following directions : “7(i) The order passed by the Court Receiver dated 16th September, 2008 (Exh.O to the petition) is hereby set aside. (ii) The Court Receiver is directed to redetermine the final royalty to be paid by the respondent who is acting as an agent of the Court Receiver as regards the said flats in Nariman Bhavan and Cupid Apartments after considering all the documents submitted before 4 him by defendant no.1 as well as the respondent no.2 and after giving them hearing in that regard.” 3. Learned counsel Shri Thakkar appearing on behalf of respondent no.2 submitted that an Appeal has been filed by the Respondent no.2 against the said order. Learned counsel Shri Narichania appearing on behalf of the applicant submitted that though statement has been made from time to time that an appeal has been filed but no such proceedings have been served on the defendants. Be that as it may in the absence of any order staying or setting aside the order passed by Kathawalla J., in my view it is incumbent on the part of the court receiver to abide by the said order dated 15.1.2007 as confirmed by the order dated 29.8.2009. The above chamber summons is, therefore, allowed in terms of prayer clause (a) with clarification that the procedure prescribed by Kathawalla, J., as contained in clause 7(ii) of the order would be followed by the court receiver for refixing the royalty. The royalty to be refixed within a period of eight weeks from date by giving an opportunity to the respective parties. Learned counsel for the parties irrespective of the parties they represent have serious grievance as regards the manner in which the office of the Court Receiver has been conducting itself. Though I do not deem it appropriate to issue 5 any directions in that behalf at this stage but would do so at a later stage if warranted. 4. Insofar as the instant motion is concerned, the court receiver to call the meeting for refixation of royalty on or before 18th April, 2011. The court receiver thereafter to fix the schedule as per his convenience and fix royalty within the time stipulated by this order. The issue as regards payment of arrears of royalty on the basis of royalty that would be fixed by the court receiver is kept open, however, respondent no.2 would be obliged to pay the royalty which would be fixed by the court receiver from the month from which the royalty is fixed subject to further challenges as may be advised. In the event the arrears of royalty are not paid it would be open for the respective parties to file an application in that behalf. 5. The fees of the advocate will be paid from the suit account. 6. Chamber summons is accordingly. disposed of. (R M SAVANT, J.)