IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1840 OF 2007 IN SUIT NO. 3680 OF 2004 Rajesh M. Khandawala..... ...... ......Plaintiff. V/s Naina Kanji Nisar @ Dr.Naina N. Wade & Anr. . .....Defendants. Mr.D.H.Mehta i/by Divya Shah Asso. Adv. for the plaintiff to show cause. Mr.Shailesh Shah i/by T.N.Tripathi Adv. for the defendant in support. Mr.D.V.Deokar 1st Asstt. To Court Receiver present. CORAM: A.P.DESHPANDE, J. 2/5/08 PC: By an order dated 31.1.06 this Court directed the plaintiff to deposit royalty fixed at Rs.45,000/- per month before 10th day of each month commencing from 10.2.06. The Court while passing the said order permitted the defendant to apply for variance in the amount of royalty after a period of three years. The present chamber summons is taken out even before expiry of period of three years. Thus to the extent the chamber summons seeks the enhancement of royalty is concerned the same is unjustified and hence rejected. Needless to mention that after expiry of period of three years from the date of 1 passing of earlier order dated 31.1.06 it would be open for the defendant to apply for enhancement of amount of royalty. 2. The plaintiff' s suit is for possession under section 6 of the Specific Relief Act. While granting notice of motion this Court so also the appellate Court prima facie found that the plaintiff was forcibly dispossessed from the premises and hence while appointing the Court Commissioner directed the plaintiff to be inducted in the suit premises as an agent of the Court Receiver. Thus under the order passed by this Court the plaintiff is occupying the suit premises. With a view to secure interest of the defendant/landlord this Court directed plaintiff to deposit sum of Rs.45,000/- per month and the said amount according to the plaintiff is being regularly deposited. Plaintiff has also along with its affidavit in reply annexed statement indicating payments. Counsel for the defendant does not agree that the entire amount has been deposited. It shall be open for the defendant to approach the Court Receiver and point out any error in the statement filed in the Court indicating payments. In the event if it is found that the entire amount as directed by this Court has not been deposited it shall be open for the defendant to take appropriate proceedings. Counsel for the defendants also submits that the plaintiff is under an obligation to pay outgoings to the society from the date of appointment of the Court Receiver. Learned counsel for the plaintiff does not dispute the liability of the plaintiff to pay outgoings from the date of appointment of the Court Receiver. In this 2 view of the matter if and in case the entire outgoings are not paid by the plaintiff to the society liberty is granted to the defendant to take out appropriate proceedings in that regard. 3. Case of the plaintiff is that he has been forcibly dispossessed whereas according to the defendant-landlord the plaintiff has voluntarily vacated the premises. This is the main dispute in the suit. According to the defendant prior to the premises being rendered vacant the plaintiff was paying rent in the sum of Rs.12,000/- per month. Thus whatever may be the outcome of the suit entitlement of the defendant to the sum of Rs.12,000/- p.m. from the plaintiff cannot be disputed. The defendant is seeking permission to withdraw the royalty amount deposited by the plaintiff in the Court at the rate of Rs.45,000/- per month whereas learned counsel for the plaintiff opposes withdrawal of any amount whatsoever by the defendant. Having regard to the equities I permit the defendant-landlord to withdraw the sum calculated at the rate of Rs.12,000/- per month from the amount of royalty deposited with the Court Commissioner. According to the learned counsel for the plaintiff defendant cannot be permitted to withdraw any amount by moving an application in this Suit as the same would tantamount to granting of relief to the defendant in a suit instituted by the plaintiff. The contention is rejected. The balance amount lying with the Court Commissioner shall be deposited in a nationalized bank initially for a period of three years. Appropriate orders in that regard can be passed by this Court 3 at the time of disposal of the suit or at any point of time before if so found necessary. Needless to mention that on deposit of sum of Rs.45,000/- hereafter as well the defendant shall be entitled to withdraw sum of Rs.12,000/- per month. Chamber summons is thus disposed of. Receiver to act on copy of this order duly authenticated. 2.5.08 4