1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1738 OF 2006 IN SUIT NO.1420 OF 2006 Sachu R. Jagasia. ...Plaintiff. Vs. Mrs. Rabiya Dehlvi. ...Defendant. Mr.Ajay K.J.Panicker for the Plaintiff. Mr. R.R. Sharma i/by R.K. Thakar for the Defendant. CORAM : R.S.MOHITE, J. DATE : 26TH JUNE, 2009 P.C. 1. This notice of motion has been taken out by the original plaintiff for appointment of Court Receiver pending the suit. The other prayer made in the motion is for an injunction restraining the defendant from disposing off or dealing with and/or transferring, alienating, encumbering and/or parting with possession of the suit premises. The suit premises in question is a shop being Shop No. 2 9, situated in Nichaldas Market, Sindhi Society, Chembur. Mumbai-71. It is stated in the suit that under a deed of partnership dated 5.2.1979 between the plaintiff Sachu R. Jagasia and the husband of the defendant Sarfraz A.Dehlvi, a business in partnership was commenced. The plaintiff was a tenant member of the suit premises being Shop No.9. The partnership deed narrated that he was the tenant member in respect of the said shop and it was made clear that the other partner Sarafraz would have no right, title or interest in the said shop of whatsoever nature. It was also mentioned in Para 9 of the partnership deed that the plaintiff would be entitled to carry out his own separate business in one half of the suit premises in the name and style Super Industrial Products . The deed stated that the plaintiff had permitted the partnership firm to use the said premises by reason of his being the partner in the said premises and without any monetary consideration. 2. It is a undisputed fact that by a letter dated 3 17.4.1981, the partnership business was mutually dissolved with effect from the date of the letter. The letter which was written by Sarafraz Dehelvi stated that that the plaintiff was carrying out business in half portion of the premises and had requested him to look after the said business which was being carried out in the name of Super Industrial Products and Electro Crafts and for that Sarafraz Dehlvi would not charge any amount from the plaintiff and that he would also pay Rs. 2000/- as the plaintiff s share in the property of the partnership business. It was mentioned that he would not only look after the plaintiff s business but also carry on his own personal business in the half portion of the premises as mutually agreed. It is the case of the plaintiff that said Sarfraz expired in the year 2005 and since then the present defendant who is wife of the deceased is occupying the said premises. 3. According to the defendant her children are 4 also in occupation of the suit premises. 4. Once the partnership has been dissolved, normal rule is that the Court Receiver should be appointed to protect the interest of the plaintiff. But in the present case it is seen that the partnership business was being carried out only in half of the premises. It is seen that in the Statement of claim the plaintiff has claimed mesne profits from 1.4.2003. Assuming that as per the letter dated 17.4.1981, the plaintiff was entitled to be paid Rs.2000/- per month towards his share in the profit. I am of the view that the same amount can be said to be payable from 1.4.2003 till the end of January, 2009. An amount of Rs.1.50 lacs would thus be arrears receivable by the plaintiff. This amount would be in respect of one half share of the shop. Since the defendant is using the entire suit premises and the suit is for possession of the entire shop, amount of Rs.3.00/- lacs can be said to be a ad-hoc amount receivable from the defendant. It is an admitted position that the 5 defendant is carrying on her own business in the entire shop. In the circumstances, in my view, following order would meet the ends of justice. ORDER a. That, if the defendant deposits in this court an amount of Rs.3/- lacs within a period of eight weeks from today and also files an undertaking within a period of two weeks from today to the effect that she will deposit the said amount of Rs. 3.00/- lacs within a period of eight weeks and will continue to pay directly to the plaintiff an amount of Rs.4000/- per month on or before 10th day of each month, there will be ad interim injunction in terms of prayer clause (b) except bracketed portion. b. If there is a default in the filing of the undertaking within two weeks or default in depositing the amount of Rs.3.00/- lacs within eight weeks or any two consecutive defaults in payment of the monthly compensation as aforesaid 6 then the Court Receiver shall stand appointed of the suit property and the Court Receiver to take formal possession and will put the defendant in possession thereof without security but subject to royalty. c. Notice of motion stands disposed off. (R.S.MOHITE, J.)