1 APP 1040 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1040 OF.2010 Peter Anil Almeida s/o Late Charles Ignatius Almeida .. Appellant -versus Francis James Almeida s/o Late Charles Ignatius Almeida and ors. Respondents. Mr. Ravi Kadam, Advocate General with Ashish Kamat, i/b Juris Consillis, for the appellant. Mr. Y.S. Bhate, for respondent No.1. CORAM: D.K. DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 27th April, 2011 P.C. 1. By this appeal, appellant who was original defendant No.4, challenges the order dated 24th June, 2010, passed by learned Single Judge, in Notice of Motion NO.3794 of 2009 in suit No.2762 of 2009. That suit was filed by the present respondent No.1 for administration of the estate of deceased father of the plaintiff. Original defendant No.1 is the mother of the plaintiff and defendant Nos 2 and 3 are the sisters and defendant No.4 who is present appellant is the brother of plaintiff. 2. Suit was filed for administration of the estate of 2 APP 1040 OF 2010 deceased father Charles Almeda. Learned Single Judge has made interim order in relation to various properties which according to plaintiff were left behind by the deceased. So far as the properties of M/s Almeda brothers is concerned, learned Single Judge has appointed Receiver and has directed Receiver to appoint highest bidder among plaintiff and defendant Nos 1 to 4, as his agent to run business. So far this order is concerned, according to appellant he is admittedly running business and as the appellant alongwith his mother defendant No.1 has more than 50% share in the property and business, there was no justification for calling for highest bids for appointment as agent of the Receiver. 3. We have heard learned counsel for the original plaintiff. According to him bids were necessary to be called because according to him, defendant No.4-present appellant has taken possession of M/s Almeda brothers fraudulently. He also submitted that the present appellant if allowed to run business, will ruin the business. 4. In our opinion as admittedly present appellant is running the business alongwith his mother and they have more than 50% share and interest in the property and the business, there was no justification in appointing anybody else than defendant No.4 as agent of the Receiver. So far as question of royalty is concerned, Receiver could have been directed to fix the royalty at the market rate. So far as the 3 APP 1040 OF 2010 contention urged on behalf of the plaintiffs are concerned, admittedly defendant Nos 1 and 4 together have more than 50% share and interest in the property and business, it is hard to believe that they will in any way ruin that business. So far as submission that because of defendant No.4 has got control of the business fraudulently, he should not be appointed as agent of the Receiver is concerned, that argument cannot be accepted because even under the order impugned in this appeal, defendant No.1 can be appointed as agent if he turns out to be the highest bidder. This order, the plaintiff has not challenged. 5. In our opinion, therefore, so far as property of M/s Almeda Brothers is concerned, following order would meet the ends of justice: i) The impugned order passed by the learned Single Judge, appointing Receiver will continue. Receiver, however, will appoint Defendant No.4 present appellant as an agent of Receiver, on defendant No.4’s producing consent of defendant No.1. In case consent of the defendant No.1 is not produced, the Receiver shall call bids for appointment of Receiver as per the order impugned in the appeal. 4 APP 1040 OF 2010 ii) Royalty shall be fixed by the Receiver by following prescribed procedure. The defendant No.4 shall deposit share of the plaintiff which admittedly is 16.66% in the amount of royalty. The defendant NO.4 shall also deposit shares of defendant Nos 1 to 3, If the defendant No.4 does not produce consent letters of defendant Nos 1 to 3. 6. A grievance is made by the appellant in relation to the order that is made by the learned Single Judge as to the property of M/s Siddharth Engineering is that the learned Single Judge in para (8) has recorded a finding that the property stands in the name of defendant Nos 1 and 4 and not in the name of deceased still has granted temporary injunction in relation to that property. Really speaking, therefore, there was no justification for making order of temporary injunction. 7. Learned counsel for the plaintiff, however, submitted that there are elaborate pleading on record to show that though this property stands in the name of defendant Nos 1 and 4, the real owner of the property was deceased father. However, it is apparent from the order that the contentions of the plaintiff have not been considered by the learned Single Judge. In our opinion, therefore, the appropriate order would be to set aside the order passed by 5 APP 1040 OF 2010 the learned Single Judge in relation to M/s Siddharth Engineering and to remit back the Notice of Motion to the learned Single Judge to hear and decide afresh in accordance with law. 8. Similarly in case of properties which have been descried as other properties in paragraph 9 (v) of the order. It is apparent from the record that plaintiff had pleaded that these properties were owned by the deceased and that position was disputed by the defendants. In the affidavit. they have claimed that these properties were not owned by the deceased. However, perusal of the impugned order shows that the learned Single Judge without considering rival cases has granted order of temporary injunction. In our opinion, therefore, interim order passed by the learned Single Judge in relation to those other properties is also liable to be set aside and the Notice of Motion is liable to be remitted back for reconsideration in relation to those properties. In the result, therefore, appeal succeeds and is allowed. 9. The order of the learned Single Judge in relation to the properties of M/s Almeda Brothers is modified to the above extent. The order of learned Single Judge in relation to the properties of M/s Siddharth Engineering and other properties is set aside. Notice of Motion is remitted back to the learned Single Judge for consideration, hearing and decision in relation to the properties of Siddharth Engineering and other 6 APP 1040 OF 2010 properties. 10. If any ad interim order in relation to the property of M/s Siddharth Engineering and other properties was operating before 24th June, 2010, the same will continue to operate till a fresh order is made pursuant to this order by the learned Single Judge. (ANOOP V. MOHTA,J) (D.K. DESHMUKH, J.)