1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1638 OF 2003 NOTICE OF MOTION NO.1638 OF 2003 NOTICE OF MOTION NO.1638 OF 2003 IN IN IN SUIT NO.3275 OF 1987 SUIT NO.3275 OF 1987 SUIT NO.3275 OF 1987 P.K.Thilakan ...Plaintiff Vs. Vithala N. Shetty ...Defendant ----- Mrs.Asha Nari i/b. Mahesh Menon & Co. for Plaintiff Mr. M.C. Hegde i/b. B. Mohiddin for Defendant CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. DATED: 5TH AUGUST, 2005 DATED: 5TH AUGUST, 2005 DATED: 5TH AUGUST, 2005 P.C. P.C. P.C. 1. The Plaintiff entered into a conducting 1. The Plaintiff entered into a conducting 1. The Plaintiff entered into a conducting agreement with the Defendant on 16th August 1984, agreement with the Defendant on 16th August 1984, agreement with the Defendant on 16th August 1984, Exhibit-B to the plaint. The Defendant has been Exhibit-B to the plaint. The Defendant has been Exhibit-B to the plaint. The Defendant has been conducting the suit restaurant since the date of the conducting the suit restaurant since the date of the conducting the suit restaurant since the date of the agreement. agreement. agreement. 2. The Plaintiff also executed an affidavit on 2. The Plaintiff also executed an affidavit on 2. The Plaintiff also executed an affidavit on 21st September 1984 Exhibit-C to the plaint. Under 21st September 1984 Exhibit-C to the plaint. Under 21st September 1984 Exhibit-C to the plaint. Under that affidavit, the Plaintiff interalia confirmed the that affidavit, the Plaintiff interalia confirmed the that affidavit, the Plaintiff interalia confirmed the execution of conducting agreement and committed execution of conducting agreement and committed execution of conducting agreement and committed himself to assign his lawful interest in the hotel in himself to assign his lawful interest in the hotel in himself to assign his lawful interest in the hotel in the name of the Defendant within 3 years ending 15th the name of the Defendant within 3 years ending 15th the name of the Defendant within 3 years ending 15th August 1987 on receipt of Rs.6.5 lakhs inclusive of August 1987 on receipt of Rs.6.5 lakhs inclusive of August 1987 on receipt of Rs.6.5 lakhs inclusive of the security deposit of Rs.1.5 lakhs already with the the security deposit of Rs.1.5 lakhs already with the the security deposit of Rs.1.5 lakhs already with the Plaintiff. Plaintiff. Plaintiff. 2 3. It is seen from the affidavit of the 3. It is seen from the affidavit of the 3. It is seen from the affidavit of the Plaintiff, Exhibit-C to the plaint, that the parties Plaintiff, Exhibit-C to the plaint, that the parties Plaintiff, Exhibit-C to the plaint, that the parties determined the valuation of the suit premises and determined the valuation of the suit premises and determined the valuation of the suit premises and business at Rs.6.5 lakhs in 1987. The Defendant was business at Rs.6.5 lakhs in 1987. The Defendant was business at Rs.6.5 lakhs in 1987. The Defendant was to be assigned the said business from 1987. to be assigned the said business from 1987. to be assigned the said business from 1987. 4. Despite the reliance of the Plaintiff upon his 4. Despite the reliance of the Plaintiff upon his 4. Despite the reliance of the Plaintiff upon his own affidavit, the Plaintiff has not assigned the own affidavit, the Plaintiff has not assigned the own affidavit, the Plaintiff has not assigned the business to the Defendant. The Defendant claims that business to the Defendant. The Defendant claims that business to the Defendant. The Defendant claims that he should be assigned the said business and that there he should be assigned the said business and that there he should be assigned the said business and that there should be a outright sale to him. should be a outright sale to him. should be a outright sale to him. 5. The Plaintiff would be entitled to 5. The Plaintiff would be entitled to 5. The Plaintiff would be entitled to consideration at the market value as on the date of consideration at the market value as on the date of consideration at the market value as on the date of the actual assignment/sale. Since that has not taken the actual assignment/sale. Since that has not taken the actual assignment/sale. Since that has not taken place until today, the parties must determine the place until today, the parties must determine the place until today, the parties must determine the market value of the suit premises as on today. market value of the suit premises as on today. market value of the suit premises as on today. 6. The market valueis is shown in the ready 6. The market valueis is shown in the ready 6. The market valueis is shown in the ready reckoner issued by the Stamp office of the State of reckoner issued by the Stamp office of the State of reckoner issued by the Stamp office of the State of Maharashtra. The Defendant has obtained that Maharashtra. The Defendant has obtained that Maharashtra. The Defendant has obtained that valuation and claims depreciation because the suit valuation and claims depreciation because the suit valuation and claims depreciation because the suit property is in an old tenanted building. The property is in an old tenanted building. The property is in an old tenanted building. The depreciation is also allowed in the ready reckoner at depreciation is also allowed in the ready reckoner at depreciation is also allowed in the ready reckoner at a specified percentage. The Plaintiff disputes that a specified percentage. The Plaintiff disputes that a specified percentage. The Plaintiff disputes that valuation. valuation. valuation. 7. The other mode of ascertaining the valuation 7. The other mode of ascertaining the valuation 7. The other mode of ascertaining the valuation of the suit premises is to obtain the actual sale of the suit premises is to obtain the actual sale of the suit premises is to obtain the actual sale 3 value of the properties in close proximity to the suit value of the properties in close proximity to the suit value of the properties in close proximity to the suit property. The Plaintiff may obtain documents of property. The Plaintiff may obtain documents of property. The Plaintiff may obtain documents of actual transactions in the locality close to the suit actual transactions in the locality close to the suit actual transactions in the locality close to the suit premises. Both parties must abide such valuation and premises. Both parties must abide such valuation and premises. Both parties must abide such valuation and execute the assignment at such rate. execute the assignment at such rate. execute the assignment at such rate. 8. This suit has been pending since the last 18 8. This suit has been pending since the last 18 8. This suit has been pending since the last 18 years. It deserves to be disposed of upon years. It deserves to be disposed of upon years. It deserves to be disposed of upon considering considering considering such valuation and upon execution of the admitted such valuation and upon execution of the admitted such valuation and upon execution of the admitted assignment. A Notice of Motion is for enhancement of assignment. A Notice of Motion is for enhancement of assignment. A Notice of Motion is for enhancement of royalty from Rs.20,000/- to Rs.40,000/- per month and royalty from Rs.20,000/- to Rs.40,000/- per month and royalty from Rs.20,000/- to Rs.40,000/- per month and for appointing any third party as the agent of the for appointing any third party as the agent of the for appointing any third party as the agent of the suit business would prove to be counter-productive for suit business would prove to be counter-productive for suit business would prove to be counter-productive for the Plaintiff himself. the Plaintiff himself. the Plaintiff himself. 9. The royalty cannot be enhanced, since the 9. The royalty cannot be enhanced, since the 9. The royalty cannot be enhanced, since the ultimate assignment is to be infavour of the ultimate assignment is to be infavour of the ultimate assignment is to be infavour of the Defendant. In view of the Plaintiff’s statement in Defendant. In view of the Plaintiff’s statement in Defendant. In view of the Plaintiff’s statement in Exhibit-C to the Plaint, it would be improper to Exhibit-C to the Plaint, it would be improper to Exhibit-C to the Plaint, it would be improper to appoint third party as an agent pending the suit. appoint third party as an agent pending the suit. appoint third party as an agent pending the suit. 10. The Plaintiff shall be entitled to show the 10. The Plaintiff shall be entitled to show the 10. The Plaintiff shall be entitled to show the market rate of the suit premises so soon as he obtains market rate of the suit premises so soon as he obtains market rate of the suit premises so soon as he obtains valuation of the suit property by similar transactions valuation of the suit property by similar transactions valuation of the suit property by similar transactions in his locality. The offer of the Defendants to in his locality. The offer of the Defendants to in his locality. The offer of the Defendants to purchase/get assigned the suit property at market purchase/get assigned the suit property at market purchase/get assigned the suit property at market value is accepted. value is accepted. value is accepted. 11. There shall be no other order on this Notice 11. There shall be no other order on this Notice 11. There shall be no other order on this Notice 4 of Motion. No order as to costs. of Motion. No order as to costs. of Motion. No order as to costs. (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.)