-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4363 OF 2009 IN SUIT NO. 696 OF 1990. Kum. Tanuja D. Giri. ..Plaintiff. Versus Smt. Kamal D. Giri and Ors. ..Defendants. Mr. Sumit Moholkar i/b Gabrial Pillai for the plaintiff. Mr. N. S. Vaidya for the defendant. Mr. G. G. Ketkar, Ist Assistant to Court Receiver. Coram : R. V. MORE, J. Date : February 1, 2010. P. C. : 1. Heard learned counsel for the plaintiff and defendants. At the outset the learned counsel for the defendants seeks leave to delete the prayer clause (ii) with liberty to press the said reliefs at appropriate stage. Leave with liberty as prayed for is granted. 2. The defendant no.2 has taken out this notice of motion for direction to the Court Receiver to hand over possession of Shop No.4 situated at Sai Sadan Co-op. Housing Society, Building No.41, Nehru Nagar, Kurla (East), Mumbai 400 024. The plaintiff claims to be the daughter of deceased Dattatraya Giri. The defendant no.1 is wife and the defendant nos. 2 & 3 are the daughters of deceased Dattatraya Giri. Suit is filed for partition and separate possession of plaintiff’s 16.66 % share in the properties of the -: 2 :- deceased Dattatray Giri. The suit property consists of two laundries one is located at Andheri and second one at Kurla and other properties. 3. The plaintiff took out notice of motion for appointment of Court receiver. The said Notice of motion was allowed and Court Receiver, High Court, Bombay was appointed as Receiver on the suit properties. The defendants were appointed as agents of the Court Receiver, subject to payment of royalty. Royalty in respect of the Laundry at Andheri was fixed at Rs. 1216/- per month and royalty of laundry at Kurla, which is subject matter of the present notice of motion was fixed at Rs.1016/- per month. 4. Initially, the plaintiff was allowed to withdraw an amount of Rs. 1500/- per month out of the above amount of royalty. Later on, at the request of plaintiff said amount was increased to Rs.3,000/- per month as per the order passed in Notice of Motion No. 2766 of 2003. 5. The building Sai Sadan Co-operative Housing Society at Nehru Nagar, Kurla in which the laundry belonging to the deceased Dattatray was situated was re-developed by demolishing the old building. New premises being Shop No.4 is allotted in lieu of the old premises, i.e., the laundry belonging to the deceased Dattatray. There is no dispute that the Court Receiver has taken possession of this shop. Therefore, the present notice of motion is taken out by the defendant no.2 for direction to the Court Receiver to hand over possession of the said shop to him. 6. This notice of motion was opposed on the ground that the -: 3 :- defendants without informing the office of the Court Receiver gave consent for re-development. At this stage it is worth to mention that the show cause notice was issued by the Court Receiver to the defendants. The defendants tendered un-conditional apology and ultimately the said notice was discharged by the Court. 7. In the present notice of motion, we are concerned with the laundry at Kurla. It is not disputed that this premises belongs to the deceased Dattatray Giri and after his demise the defendants were in possession of the same. Though the Court Receiver was appointed on this property, the defendants were appointed as the agents of the Court Receiver on payment of royalty of Rs.1,016.50 paise. The building in which this property was situated is re-developed and in its place shop no.4 is allotted. It is true that the defendants gave no-objection for demolition and re-development of the said shop without giving any information to the Court Receiver. However, already the proceeding for contempt was taken against the defendants and same were disposed of by accepting an unconditional apology. In my view, no-objection for development on the part of the defendants cannot be said to be intentional or with an object to defeat the rights of the plaintiff and therefore the defendants cannot be deprived of having possession as the agents of the Court Receiver. However, since the shop no.4 is reconstructed, I am of the opinion that the royalty of this premises should be increased marginally. Learned counsel for the defendants has also no -: 4 :- objection in this regard. In the facts and circumstances of the case, I dispose of the notice of motion by passing following order. : O R D E R : (i) The Court Receiver, High Court, Bombay is directed to hand over to the defendants possession of Shop No.4 situated at Sai Sadan Co- op. Housing Society, Building No.41, Nehru Nagar, Kurla (East), Mumbai 400 024 within the period of two weeks from today. (ii) The possession of the above premises shall be given to the defendants on their executing agency agreement. (iii) Royalty of the aforesaid shop is fixed at Rs.2,000/- per month. (R.V. MORE, J.)