1 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1356 OF 1998 Boman Diniya Faramarzi & Anr. .. Appellants Versus Banoo Merwan Aref & Ors. .. Respondents Shri Snehal Shah a/w Mr. Z.A.Jariwala & Ms. Jyoti Ghag i/b Thakore Jariwala & Associates for Appellants None for Respondents CORAM : B.H. MARLAPALLE & SMT. V. K. TAHILRAMANI, JJ. DATE : 11 th March, 2010 P.C.: 1. This Appeal is directed against the order dated 16 th October 1998, thereby allowing Notice of Motion No.1876 of 1996, by appointing the Court Receiver for the suit property. The Court Receiver was further directed to invite bids for appointment of agent for the suit property and the Defendants were directed to pay 27% of the bid amount per month to the Plaintiffs for the period during which they were running the restaurant as agent of the Court Receiver and this arrangement was continued till the highest bidder is appointed by the Court Receiver takes over the suit property. 2 2. While admitting the Appeal, following interim relief was granted on 30 th January 1999 in Notice of Motion No.372 of 1999: “A. Interim relief in terms of prayer clause (a) of the motion, subject to the following conditions: i. The Appellants shall deposit with the Prothonotary and Sr.Master, the amount of Rs.8 lakhs representing the approximate arrears of 27% share in the royalty payable to the Plaintiffs from June, 1996 till the end of 1998. ii. The amount of Rs.8 lakhs will be deposited in 8 monthly installments of Rs. One lakh each commencing with the month of March 1999. The first of such deposit of Rs. One lakh to be made by 15 th March 1999, and the subsequent monthly installments of Rs. One lakh each are to be deposited on or before 15 th day of each month, till the total amount of Rs.8 lakhs is paid. iii. From January, 1999 onwards, the Appellants are liable to deposit with the Prothonotary and Sr. Master, an amount of Rs.27,000/- per month, by 10 th day of each following month. First of such 3 payment viz for January 1999 is to be made by 10 th February, 1999 and so on. iv. Out of the amounts to be deposited by the Appellants with the Prothonotary and Senior Master, viz. Rs.27,000/- per month by 10 th day of each month commencing with February 1999 and Rs. One lakh by 15 th day of each month commencing with March, 1999, Respondents 1 to 4 are permitted to be withdraw 50% of the amount deposited without furnishing security, and the remaining 50% of the amount is permitted to be withdrawn by Respondents 1 to 4 only on their furnishing security to the satisfaction of the Prothonotary and Sr. Master. Thus, out of the amount of Rs.27,000/- to be deposited by the Appellants per month Rs.13,500/- will be permitted to be withdrawn by the Respondents 1 to 4 without furnishing any security and the balance amount of Rs.13,500/- will be permitted to be withdrawn on their furnishing security to the satisfaction of the Prothonotary and Sr. Master. Similarly, out of the 4 monthly amount of Rs. one Lakh to be deposited by the Appellants with the Prothonotary and Sr. Master commencing with the 15 th March 1999 till the total amount of Rs.8 lakh is deposited. The Respondents 1 to 4 are permitted to withdraw an amount of Rs.50,000/- without furnishing any security and the balance amount of Rs.50,000/- will be permitted to be withdrawn by Respondents 1 to 4 on their furnishing security to the satisfaction of the Prothonotary and Sr. Master v. In the event of the Appellants committing any default, liberty to move this Court. vi. The Appellants are permitted to deduct the tax deductible at source (TDS) in accordance with the provisions of the Indian Income Tax Act. If they are liable to do so, while making each of the above mentioned deposits towards the 27% share of the royalty payable to the Respondents-Plaintiffs. Needless to add that in the event of the Appellants deducting any amount towards the tax deductible at source (TDS), the Appellants will issue the requisite 5 certificates to the Respondents-Plaintiffs to that effect. vii.Pending hearing and disposal of the appeal, the Appellants are restrained from in any manner transferring, disposing or encumbering the restaurant business and the premises, or from creating any third party rights in respect of the same. 3. It is thus clear that the interim order passed in this Appeal on 30 th January 1999 has continued to operate during the last more than 11 years and the impugned order was stayed. It would be, therefore, appropriate that the pending suit is decided expeditiously and the interim order dated 30 th January 1999 is continued till the said suit is decided. The Learned Counsel for the Appellants states that though steps have been taken to comply with the interim order dated 30 th January 1999, in the recent past, there have been some arrears and he undertakes to clear those arrears within 6 weeks. 4. Hence, this Appeal is disposed off with the directions that the interim order passed on 30 th January 1999 shall continue to operate 6 till the suit No,1623 of 1999 is decided and the Appellants (Defendant Nos.1 & 2) shall clear the arrears, if any, within a period of 6 weeks from today. Trial of the suit is hereby expedited. Parties to bear there own costs. 5. Notice of Motion No.372 of 1999 does not survive. (SMT. V. K. TAHILRAMANI, J.) (B.H. MARLAPALLE, J.)