1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion no.74 of 2006 in Suit No.4913 of 2000 Majid Ahmedbhai Oomerbhoy ..Plaintiff vs. 1. Rashid Sattar Oomerbhoy & ors. ..Defendants and Kashi Sitaram Deora ..Applicant Ms.Mamta Sadh i/b M/s Zohari and Co. for the applicant. Mr.Gourav Joshi with Mr.Jariwala i/b T.Jariwala and Associates for plaintiffs. Mr.K.D.Raorane, Section Officer of Court Receiver present. CORAM: S.J.KATHAWALLA J. 9th June, 2009 P.C. 1 This Notice of Motion is taken out by the applicant seeking a direction to the Court Receiver to release an amount of Rs. 1,71,097/- being 20% amount retained out of the amount approved by M/s Chaudhari, Pradhan 2 and Deo Ltd., Chartered Accountants in their report dated 19th February, 2002. 2 The applicant is in the business of supplying packaging materials in the firm name of TMI Plastics as a sole proprietor. This suit being suit no.4913 of 2000 is for dissolution of the suit partnership firm i.e. M/s Ahmed Oomerbhoy to which the applicant is not a party. The applicant is one of the suppliers of packing materials to the suit partnership firm. By order of this Court dated 6th December, 2000 the Court Receiver was appointed as a Receiver of the suit partnership business and its assets. By order dated 30th July, 2001, this Court, inter alia directed the Court Receiver to appoint the Chartered Accountants to work out the amount that the suit partnership firm is liable to pay inter alia to the suppliers. Accordingly, the Court Receiver had appointed M/s Chaudhari Pradhan and Deo Ltd., Chartered 3 Accountants to verify the claims regarding statutory dues payable to the employees and also to the suppliers of the suit partnership firm. The Chartered Accountants after verifying the documents submitted their reports dated 19th February, 2002 and 11th March, 2002. By their reports the Chartered Accountants recommended the payment to the applicant to the extent of 80% of the claim filed and retained the balance 20% towards possible statutory deduction such as Income Tax, Works Contract Tax or cash payment etc. The applicant was thereafter paid the amount of Rs.6,81,000/- being 80% of his claim of Rs.8,52,097/- 3 Since the 20% of the amount retained was not paid to the suppliers including the applicant even after three years of the payment of the said 80%, a Chamber Summons being No.129 of 2004 which was taken out for release of the balance 20% by some other 4 applicants was disposed of by this Court by its order dated 29th March, 2005. Paragraph 2 of the said order reads as under: The learned Counsel is justified in making the aforesaid grievance. I direct the Receiver and Chartered Accountant both to finalise the report in so far as the balance 20% is concerned in respect of claim in prayer a(i). If report is not finalised within the stipulated period of time then in that event the Court Receiver is directed to release the said balance payment of 20% to the applicants herein. 4 It is admitted by the learned Advocate appearing for the plaintiffs that though the stipulated period is over since long the Chartered Accountants have failed to finalize the report till date i.e. more than three years after the said order dated 29th March, 2005 was passed. 5 5 As set out hereinabove, the amount claimed by the applicant is not disputed by the plaintiffs or the Court Receiver. However, 20% of the amount claimed is retained from the last more than seven (7) years only for the purpose of verifying as to whether any taxes were to be deducted from the amount claimed by the applicant or whether any payments were made in cash to the applicant. The entire idea of retaining 20% was, therefore, to exercise caution and prevent making of any excess payments to the applicants. This conduct of non payment of the legitimate dues of the applicant on the ground that the Receiver and Chartered Accountants have not finalised the report qua the balance 20% due and payable to the applicant from the last more than seven years is totally unjustified and unfair. In the Chamber Summons taken out by some of the applicants the Court Receiver was already 6 directed by an order of this Court dated 29th March, 2005 to release the payment of 20% to the applicant if the report is not finalised within the stipulated period of time. This order was not challenged by the plaintiffs. 6 In view thereof, the Court Receiver is directed to forthwith release the balance payment of Rs.1,71,097/- in favour of the present applicant. 7 The Notice of Motion is, therefore, disposed off with no order as to costs. (S.J.KATHAWALLA J.)