1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.70 OF 2008 IN TESTAMENTARY SUIT NO.42 OF 2003 IN TESTAMENTARY PETITION NO.384 OF 2003 Mr.Gopal Rammourti ..Petitioner Versus Mrs.Shabnam Merchant & ors ..Respondents Mr.A.A.Nabar i/b.M/s.Hariani & Co., Advocate, for the petitioner Ms.Deepa Mani i/b.S.K.Srivastava & Co., Advocate, for the respondent Nos.1 & 2 Mr.Farhan Dubash i/b.M/s.Yatin R. Shah, Advocate, for the respondent Nos.3 & 4 CORAM : R.M.SAVANT, J. DATE : 4TH DECEMBER, 2008 P.C. . By the above Chamber Summons, the applicant/i.e.respondent No.4 to the Testamentary Petition seeks the following reliefs. 2 (a) That the royalty by the applicant/respondent No.4 being the agent of the Court Receiver in respect of the suit premises (viz. Shop Nos.15 and 17, situated at Eden – II, Hiranandani Gardens, Powai, Mumbai – 400 076) for the period during which they remained unutilised (i.e.from August, 2007 to November, 2007) be waived and the royalty amount deposited by the applicant/respondent No.4 for the month of August, 2007 be adjusted towards/treated as royalty payable for the month of December, 2007. (b) That the Court Receiver give credit for the amount of Rs.23,300/- already paid directly by the applicant/respondent No.4 to BSES Limited towards the reconnection of electricity and arrears of electricity charges in respect of Shop No.17 of the suit premises. (c) That the arrears of electricity charges towards Shop No.15 of the suit premises be paid by the Court Receiver to BSES Limited out of the funds generated from the estate of the deceased. (d) That the tenure of Agency Agreement executed with effect from 14th August, 2007 by the applicant/respondent No.4 be extended by further period of four months from 13th June, 2009 till October, 2009. 2. The facts to be stated are thus :- The above Testamentary Suit is pending in this Court in respect of the grant of probate of the deceased Mr.Nilesh Kapadia. The said Mr.Nilesh Kapadia was the owner of two shops being 3 Nos.15 & 17 situated at Eden – II, Hiranandani Gardens, Powai, Mumbai _ 400 076. The said Nilesh Kapadia had two sisters i.e.the respondent Nos.3 & 4. The said Nilesh Kapadia expired on 26th May, 2003. On 5th June, 2003 one Gopal Rammourti i.e.petitioner filed the above Probate Petition of the Last Will and Testament of the deceased dated 25th April, 2003, which was converted into Testamentary Suit No.42 of 2003. Pursuant to the Notice of Motion No.1834 of 2003 filed in the said suit, the Court Receiver was appointed and he was directed to appoint the respondent Nos.3 & 4 as the agents of the Court Receiver. The Court Receiver took possession of shop No.17 on 26th September, 2005 and handed over it to the agents on the same day. In so far as shop No.15 is concerned, same was handed over to the Court Receiver on 28th December, 2005, who in turn handed over to the said agents on the said date. 3. The respondent No.1 filed Chamber Summons No.23 of 2007 for setting aside the Order fixing royalty and for enhancement of royalty. The respondent No.4, who is one of the agents filed Notice of 4 Motion No.27 of 2007 for change of user from restaurant to garment shop and to shift the movables lying therein. 4. It appears that the respondent No.1 also filed another Chamber Summons No.30 of 2007 for discharging the Court Receiver of the suit premises and for an order that possession thereof should be handed over to her. She also sought the removal of the agents i.e. respondent Nos.3 & 4 and sought her appointment in place of the said agents. By an order dated 24th April, 2007, his Lordship Mr.Justice D.K.Deshmukh heard all the applications and directed by the said order to appoint new agents of the suit premises after inviting bids by publishing an advertisement in the local newspaper. Accordingly, on 15th July, 2007 advertisement was published in the local newspapers. Pursuant to which the respondent No.4 again gave her offer and being the highest bidder she was appointed as agent of the Court Receiver in respect of the suit premises. The respondent No.4 has thereafter entered into Agency Agreement and has also completed the formalities by paying the Security Deposit as well as the Royalty for the month of August, 2007, as also three months advance Royalty. 5 The possession of the suit premises was handed over to the respondent No.4 on 14th August, 2007 with movables. . Inventory of movables lying in the premises was made. The respondent No.4 did not want the said movables and therefore requested that they be sold. The respondent No.1 consented to the sale. The sale of the movables was carried out on 6th December, 2007 to one R.H.Traders for Rs.59,000/-. On 15th December, 2007 movables were removed from the suit premises and vacant possession thereof was given to the respondent No.4. The respondent No.4 on 6th December, 2007 made payment of arrears of electricity charges of Rs.23,000/- in the protest in respect of Shop No.17 and electricity was re-connected. Arrears in respect of Shop No.15, Rs.24,252/- are outstanding. 5. The relief as can be seen from the prayer with the remission of four months' Royalty to the period between 14th August, 2007 till 15th December, 2007. This is on the ground that the agent 6 i.e.the respondent No.4 could not put the premises to use since they were occupied by the movables. The prayer in respect of the electricity charges is sought on the ground that the said charges were for the period prior to the respondent No.4 being appointed as agent of the Court Receiver. In my view, the respondent No.4 – agent is not entitled to the said reliefs. The respondent No.4 had bid in the fresh auction held, pursuant to the advertisement with open eyes i.e.knowing fully the position of the premises and the condition they were in. The agent was also knowing that the electricity was dis- connected on account of non-payment of the bills. The agent having entered into the Agency Agreement and having agreed to the payment of Royalty that would be fixed cannot now be allowed to wriggle out of his obligations under the said Agency Agreement. It would also be pertinent to note that pursuant to an order passed in the year 2005, the respondent Nos.3 & 4 were appointed as the agents of the Court Receiver in respect of the suit premises. Therefore, they were well acquainted with the suit premises. It may be another matter that the respondent Nos.3 & 4 did not carry on any business pursuant to the earlier Agency Agreement. In fact, the 7 respondent Nos.3 & 4 were concerned with the suit premises right from the year 2000 when the owner Mr.Nilesh Kapadia had requested them to carry on the restaurant business due to his deteriorating health and sickness. The respondent No.4 therefore would not be entitled to remission of royalty charges. 6. In so far as the relief regarding the electricity charges are concerned, in my view, the respondent No.4 - agent would not be entitled to the same for the same reasons as applicable to the remission of Royalty. In that view of the matter, no relief can be granted to the respondent No.4 – agent in the Chamber Summons. The Chamber Summons is accordingly rejected. It is made clear that it would be open for the Court Receiver notwithstanding the rejection of the prayer for remission of royalty to consider the case of the respondent No.4 for extension of the Agency Agreement, by a period of four months, which would be subject to the further orders that may be passed by this Court. (R.M.SAVANT, J.) 8