1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO.4854 OF 2007 IN SUIT NO.3490 OF 2007 Teresa Rajan Nair ...Plaintiff Vs. Vincent Fernandes & Anr. ...Defendants Mr. Denzil D'Mello for Plaintiff Mr. H.N.Vakhil i/b. Mulla & Mulla for Defendant No.1 Ms. Deepa Pahuja i/b. Veena Thadani for Defendant No.2 CORAM: SMT.ROSHAN DALVI, J. DATED: 20 TH FEBRUARY , 2009 P.C. 1. The Suit is filed essentially against Defendant No.1 for recovery of the suit premises upon expiry of the Conducting Agreement entered into between the parties. 2. The Plaintiff's husband and Defendant No.2 were brothers. Their mother was the tenant of the Suit premises. After her death the Plaintiff's husband and Defendant No.2 became the tenants. Admittedly the Plaintiff's husband is entitled to 75% share in the tenancy. The Defendant No.2 is entitled to 25% share therein. 2 3. The initial agreement for conducting the Restaurant and Bar on the suit premises was entered into by the Plaintiff's husband with Defendant No.1. Under that agreement Rs.20,000/- was payable as monthly royalty and compensation. Rs. 2,00,000 /- were deposited as security. The agreement expired by afflux of time on 30 th September 2003. Defendant No.1 defaulted in payment of certain royalty. Hence, there were arrears of the payment of royalty. 4. Thereafter, another Conducting Agreement was entered into by the Plaintiff's husband and Defendant No.2 with Defendant No.1. That agreement was for a period of 3 years till 30 th September 2006. Under that agreement Rs.50,000/- was payable by way of monthly royalty and compensation. A deposit of Rs.5,00,000 /- was to be given by way of security. From the said deposit of Rs.5,00,000 /- , Rs.2,00,000/- was to be adjusted towards the earlier arrears of Defendant No.1. The remaining Rs.3,00,000 /- was to be paid in the ratio of 75 :25 to the Plaintiff's husband and Defendant No.2. 5. The Plaintiff as well as Defendant No.2 complain that nothing is paid under the said agreement. That agreement has also expired by afflux of time. The Defendant No.1 continued to carry on business in the Suit premises even thereafter. 3 6. Since there were arrears of the payment of royalty as well as the amount of deposit, the liquor license which was required for running the Restaurant and Bar at the Suit premises was directed not to be renewed by the Plaintiff's husband. The license was not renewed. The Defendant No.1 challenged the order of refusal to renew the license in Writ Petition No.4518/2004. By a consent order dated 16 th December 2005 between the parties herein and the authorities it was agreed that the Defendant No.1 would pay compensation of Rs.50,000/- towards conducting charges till 31 st August 2006 when the Conducting Agreement was to expire (In fact the Conducting Agreement was to expire on 30 th September 2006 ). 7. For payment of further royalty a fresh bid was to be invited by the Court Receiver. No other party bid when the Court Receiver invited bids. Hence, Defendant No.1 continued carrying on business in the Suit premises. 8. It appears that three cheques for the payment of the royalty came to be issued by Defendant No.1 on 21st December 2006, 29 th January 2007 and 27 th February 2007. Thereafter no payments are made. 4 9. It is seen that the agreement has expired by a flux of time. There are huge arrears to be paid by Defendant No.1. Amounts are not paid as agreed even in Consent Order dated 16 th December 2005. 10. I am told that the three cheques sent to the Plaintiff were returned. The Plaintiff contends that that was because the earlier arrears were not paid. 11. Nevertheless it is seen that the Defendant No.1 continues carrying on business without payment of the royalty payable and without securing by way of deposit any amount for the use of the premises. 12. The liquor license is not renewed. 13. A case for appointment of Court Receiver as well as grant of the usual injunction is made out. Hence, the following order:- 1. The Defendant No.1 shall not alienate, encumber, sell, part with possession or create any 3rd party rights in the Suit premises or in the Suit license being carried out by him in the name and style of “Modern Lunch Home & Bar ”. 5 2. The Court Receiver is appointed Receiver in respect of the Suit premises. 3. The Defendant is appointed the Agent of the Court Receiver. 4. The Defendant shall deposit the monthly compensation agreed between the parties on 16 th December 2005 at the rate of Rs.50,000/- per month with the Court Receiver regularly on or before 10 th of each month. 5. The Defendant No.1 shall also deposit Rs.5,00,000 /- as security deposit with the Court Receiver within 4 weeks from today. 6. The Defendant No.1 shall be entitled to continue the business in the Suit premises as the Agent of the Court Receiver subject to payment of all the costs, charges, expenses of the business in addition to the payment of royalty and the security deposit as aforesaid. 7. The Plaintiff and Defendant No.2 shall be entitled to withdraw the amount of royalty deposited by Defendant No.1 in the ratio of 75 :25. 8. The Defendant No.1 shall have the liquor license renewed in the names of the Plaintiff and Defendant No.2 in respect of the Suit business. The Plaintiff and Defendant No.2 shall render all assistance in that behalf. 9. If the Defendant No.1 commits any default in payment 6 of any royalty amount or in making the deposit of the security deposit as provided above, the Court Receiver shall take possession from of the suit premises the Defendant. 10. The amount of royalty which comes to the share of Defendant NO.2 has been paid to Defendant NO.2 and accepted by Defendant No.2 up to November 2008. 11. The Defendant No.1 shall pay the unpaid amount of royalty to Defendant No.2 for the months of December 2008, January 2009 and February 2009 also. 12. The amount of royalty payable to the Plaintiff has been paid only thrice as aforesaid. Those cheques have been returned to the Defendant No.1. 13. The Defendant No.1 shall deposit with the Court Receiver the extent of royalty payable to the Plaintiff (which is Rs.37,500/- per month) from December 2006 onwards also within 4 weeks from today. 14. The Notice of Motion is disposed of accordingly. (SMT. ROSHAN DALVI, J.)