1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COURT RECEIVER'S REPORT NO.121 OF 2009 IN NOTICE OF MOTION NO.629 OF 2009 IN SUIT NO.224 OF 1996 Salamullah Munshidar (deceased) through Ahsanullah Salamullah & Anr. .. Plaintiffs Versus K.K.Kumaran & Ors. .. Defendants Mr.S.P.Dubey for plaintiffs Mr.Dinesh C. Shah for defendant No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 18th September 2009. P.C.: 1] This notice of motion is by the defendant No.1 and he challenges the order dated 16th January 2009 of the Second Assistant to the Court Receiver, determining the royalty/ compensation per month at Rs. 75,000/- per month. 2] Mr.Shah appearing on behalf of the first defendant submitted that 2 the compensation amount/ royalty amount was determined at Rs.7500/- per month. He invites my attention to the orders passed by this Court when the Court Receiver was appointed on 13th August 1997. He submits that merely because this Court passed an order opining that it would be open for the plaintiffs to seek enhancement in the compensation/ royalty amount, does not mean that the royalty has to be enhanced 10 times and that too on the basis of a valuation report. He submits that the Receiver was to apply his independent mind and not to just go by the valuation report in determining the royalty. Further, there are lot of distinguishing factors and the instance in the valuation report cannot be straight away accepted. Parties ought to have been given a complete opportunity which was denied and, therefore, the determination be set aside. 3] On the other hand, plaintiff No.1 submits that the property admeasures 360 sqare yards. The property is used for industrial purpose. There are three sheds and the first defendant is carrying on business therefrom. By no stretch of imagination Rs.75,000/- can be said to be adequate amount of monthly royalty. More so, when the suit is for 3 possession on the basis that the first defendant and others are trespassers in an immovable property. Considering that the suit has not been heard for nearly 13 years from its institution, then, it is a fit case where the determination of the Court Receiver should be maintained. 4] After the matter was heard for some time and I invited attention of both Counsel to the order dated 10th July 2009, Mr.Shah stated that the rate of Rs.30,000/- per month determined from 21st July 2008 is on higher side. First defendant is not carrying on any huge business but these are small tin sheds wherefrom welding etc. activities are carried out. Merely because they are in possession does not mean that the sheds and the land is comparable to the other developed premises/land. Any comparison with the office premises or galas in regular industrial estates, cannot be the basis in this case. The premises must be seen and the present status taken into consideration. 5] With the assistance of learned Advocate of both sides, I have perused all affidavits and the supporting material. I have also perused valuation report and order of Receiver. The suit is for possession. The 4 premises are stated to be located at Sakinaka and admeasure about 360 square yards. The premises are plot of land as well as structures. The premises are nearby a developed locality. However, the Valuer's report itself indicates that they cannot be compared to the fully developed sites in all respects including amenities. In such circumstances, I am of the opinion that interest of justice would be sub-served if the royalty amount is enhanced from Rs.75,00/- per month to Rs.25,000/- per month with effect from today. Receiver's determination is on the higher side and the Receiver has merely gone by the contents of the valuation report. There does not appear to be any independent application of mind nor is any comparison made with the instance in the valuation report and the present premises. In these circumstances, that determination will have to be set aside. The ad-interim order determines a sum of Rs.30,000/- but it is pointed out that the first defendant is incurring some expenses as well. Although, the extent of the sum is not admitted, yet, I am of the view that Rs.25,000/- would be an adequate sum. Accordingly, the royalty be determined as Rs.25,000/- per month payable from today. 6] At this stage learned Advocate for plaintiffs pointed out that the 5 suit could not be disposed of for nearly 13 years and more. The plaintiffs are also facing hardships. The original plaintiff has expired and their heirs are now pursuing the claim. He, therefore, prays that Receiver be directed to release some amount in favour of plaintiffs. The request is opposed by Mr.Shah and, he submits that Receiver is appointed during the pendency of the suit, royalty amount is directed to be deposited during pendency of the suit. If some amount is allowed to be withdrawn at this stage, that would amount to defendants accepting the claim of plaintiffs with regard to defendants being trespasser. In these circumstances, no withdrawal of the amount should be granted. 7] In the light of the fact that the Court has appointed the Court Receiver and now further monthly royalty/compensation has been enhanced so also taking into account that the suit could not be disposed of for all these years, interest of justice would be sub-served if, without prejudice to the rights and contentions of the parties, a sum of Rs. 1,25,000/- is paid over to the plaintiffs from the amount collected and lying with the Receiver. 6 8] It is stated that Rs.4,94,861/- is lying in the suit account with the Receiver. The Court Receiver to release the sum of Rs.1,25,000/- to the plaintiffs on plaintiff No.1A producing before the Court Receiver a copy of undertaking to this Court. In other words, before withdrawal is permitted, plaintiff No.1A, on behalf of all plaintiffs, should give an undertaking to this Court that in the event the suit is dismissed or any order adverse to the plaintiff is passed, the sum of Rs.1,25,000/- will be brought back with interest at such rate as is determined by this Court or deemed just, fit and proper. So also that the amount would be brought within the time specified by this Court. As soon as this undertaking is filed in the Registry and a copy placed on record of the Receiver, the Receiver to release the sum to the plaintiffs. 9] Notice of motion so also the Court Receiver's report No.121 of 2009 is disposed of accordingly. No costs. (S.C.DHARMADHIKARI, J)