1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk CHAMBER SUMMONS NO. 1214 OF 2007 IN SUIT NO. 1777 OF 2004 Salma Asgarali Makati & Ors. .. Plaintiffs Vs. Shabir Shaikh Shamsuddin Pachorawala & Anr .. Defendants And Okay Transport & Ors. .. Respondents Ms. Mridula Bhatia with Anita Castelino with Mr. Ali Zaidy Tasneem Zaidy for Plaintiff Nos. 1 to 4. Mr. Y. R. Chaudhari for Plaintiff No.5. Mr. Sunil Gangan i/b RMG Law for Defendant No.1. Mr. V. Mannadial for Respondent No.1. Mr. Rohan P. Surve i/b Madhav Jamdar for Respondent No.3 CORAM : MRS. R. S. DALVI, J. DATE : 9th June, 2010. P.C. 1. This is an administration and a partition suit. The relationship between the parties is admitted. The parties are siblings. The parties claim the estate of their deceased father. The entire estate is in the charge and control of Defendant No.1 who is the brother of the Plaintiffs. There are several properties which will be required to be partitioned and the parties’ shares be paid. 2 One of the properties, which is at Ghodbundar Road, has certain sheds. The sheds are stated to be tenanted. Rent is collected from the tenants. 2. It has been the Plaintiffs’ case in the plaint that one of such tenants or occupants is M/s. Okay Transport Ltd. which pays the monthly rent of Rs.70,000/-. In the initial Notice of Motion taken out by the Plaintiffs in the suit, being Notice of Motion No. 2718 of 2004, this averment is not disputed. In fact no affidavit-in-reply is filed. In the interim order which was passed an Appeal came to be filed by the Plaintiffs. In the order in Appeal, this contention of the Plaintiffs, amongst others, is recited. 3. There have been admittedly two other tenants in the industrial sheds at Ghodbunder Road being the same property. The tenancy as well as the rent payable by those two other tenants has been admitted. That amount has been collected by or paid to the Court Receiver. That is in the range of Rs.53,000/- p.m. The rent from Okay Transport is not paid. 4. It is case of Defendant No.1 as well as Okay Transport (who is Respondent No.1 in this Chamber Summons) that a liquidated amount of rent is not paid by Okay Transport. The occupancy of Okay Transport is admitted by the parties. It is contended by Defendant No.1 and Okay Transport that upon the warehousing activities of 3 Okay Transport, which vary from month to month, invoices are issued and amounts are paid. Even that amount is not paid to the Court Receiver. Defendant No.1 opposes that payment of amount on the ground that, that is the only source of his livelihood. 5. It need hardly be mentioned that even if that is his only source of livelihood, that being a part of his father’s estate, it would be required to be shared by all the siblings. 6. Neither Defendant No.1 nor Respondent No.1 produced the invoices, if any, issued by Defendant No.1 upon Respondent No.1 from time to time in the usual course of their business for claiming diverse amounts as occupancy charges. 7. No other Transporter or warehouser is in the premises. Okay Transport, therefore, has occupancy of and access to the entire premises. The entire premises is 14,400 sq. ft. in area in addition to 2,500 sq. ft. of open space for its trucks for loading and unloading purposes. Okay Transport would, therefore, require to pay and would be expected to pay monthly charges equivalent to the premises in its occupation to Defendant No.3 for its transport operations from premises of Defendant No.3. Defendant No.3 would not be concerned with how much business Okay Transport has each month; it would be concerned only with the warehousing charges. The oral case of Defendant No.1 and 4 Okay Transport that Okay Transport pays only such amount as is charged for the extent of space used by them in the warehouse of Defendant No.1 as the partner of Defendant No.3 each month upon invoices being drawn upon it cannot be accepted. 8. After this Chamber Summons was extensively heard on the last date of hearing, it was adjourned to today to see the documents of Defendant No.1 and Respondent No.1 showing various diverse amounts paid upon different extent of warehousing by Okay Transport in the suit premises. That is not shown. 9. Copies of certain debit advices are produced. These are type-written and signed by Defendant No.1. The debit notes are from the year 2003 till April, 2010. The texture, colour and state of debit notes through the years is identical. They are not seen to have been issued from time to time in the course of business of Defendant No.1. They are seen to be made out at one time. 10. Defendant No.1 has produced the statement of bank account of Defendant No.3 in IDBI Bank, Khar branch. Defendant No.1 has shown certain entries of Rs.45,000/-, 35,000/-, 30,000/- etc. which are received from time to time on the monthly basis and stated to be received from Okay Transport. Interestingly of all these entries are after the aforesaid order of the Division Bench. All these entries are 5 shown as credit entries by clearing. The name of Okay Transport is not shown therein. It is stated to be of Okay Transport by Defendant No.1. It is not understood how the warehousing charges or the occupancy charges or the rent or compensation paid by Okay Transport in 2002 which were Rs. 70,000/- came to be depleted to Rs.30,000/- or 35,000/- or 45,000/- from 2006 onwards and after the Appeal Court order was passed. 11. The Plaintiffs have produced the website printout of Okay Transport Corporation showing its various services, clients and its particulars of occupants and business. The suit premises is shown as the address of Okay Transport in Thane. The Plaintiffs have produced photographs of various trucks of Okay Transport in the open space outside the warehouse which is also let out to Okay Transport for loading and unloading of goods transported by them. 12. Further a suit was filed by Union Bank of India against the parties herein in respect of certain loan initially taken by Defendant No.3 firm. In the account of Defendant No.3 with Union Bank of India, three entries of Rs.70,000/- dated 15.05.2002, 09.11.2002 and 23.03.2003 are shown as credited to that account. These entries are stated to be the rent/compensation received from Okay Transport. In fact it does not matter whether it is rent, compensation or the warehousing charges. These would be essentially 6 occupancy charges. These charges would be required to be deposited with the Court Receiver directly as directed in the order of the Appeal Court. 13. Ms. Mridula Bhatia drew my attention to the fact that admitted amount of rent of the other two tenants is also in the same ratio as that of Okay Transport. The analogy is very striking. 1. Bharat N. Patel, is tenaned an area of 4000 sq. ft. He pays a rent of 21,000/- which is five times the extent of the premises in his occupation. 2. M/s. Petrox Containers is tenanted a premises of 7200 sq. ft. It pays a rent of Rs.32,750/- which is also about 4 ½ times the extent of its premises. 3. M/s. Okay Transport admittedly is in occupation of 14,400 + 2500 sq. ft. under whatever capacity. It would pay also require to pay an amount of approx 4 ½ times the extent of its premises. Rs.70,000/- p.m. would be 4 times the extent of its premises. 14. It is, therefore, impossible to accept that Okay Transport pays any amount less than Rs.70,000/- p.m. to Defendant No.1 as the partner of Defendant No.3. Whatever be the mode in which the payment is made, since neither Defendant No.3 nor Okay Transport has produced the accounts maintained and audited by them, it can only be inferred that their contention that they pay far less than the said amount is incorrect. 7 15. Ms. Mridula Bhatia rightly argued that the account of IDBI Ltd. produced by Defendant No.1 cannot be the only documentary evidence to show the precise amount received by Defendant No.1 from Okay Transport. There is a lot of substance in her argument that part amount could have been paid in cash or credited to another account which is not shown to the Court. 16. The fact remains that the initial statement of the Plaintiffs in the plaint itself that, Raj Bucket Factory pays Rs. 70,000/- p.m. to Defendant No.3 a partnership firm of Defendant No.1 is not disputed. 17. The order in Appeal requires the tenants in occupation to pay the rent and monthly occupation charges to the Court Receiver directly. In the spirit of that order, therefore, Rs.70,000/- stated to be paid by Okay Transport and not disputed was to be paid by Okay Transport also directly to the Court Receiver. 18. The Court Receiver has been paid rents by the two other tenants. He has not been paid the rent by Okay Transport at all after the order of the Appeal Court dated 15.12.2005. 19. The Court Receiver was directed specifically to collect Rs.70,000/- being the monthly rent of Okay 8 Transport by the order of this Court dated 10.02.2006. Despite that order, which I am told is not challenged, the amount is not paid. The Court Receiver took out his Report No. 175 of 2008. In the order of this Court passed in the Court Receiver’s Report No. 175 of 2008 dated 06.10.2008 also the Court Receiver was directed to recover the rents from the parties. 20. In fact it would be the most necessary consequence of the admitted position that the property is a estate of the deceased father of the parties and is therefore the entitlement of all his heirs. 21. The Chamber Summons is for direction to the Court Receiver to recover from Respondent No.1 occupation charges of Rs.70,000/- p.m. or at the market rate of occupation of the suit premises. The Chamber Summons is for the further relief that in the event of Okay Transport disputing the said amount to be received, the Court Receiver be directed to appoint an Architect to determine the occupation charges at the market rate, 22. It is seen that the tenants have been directed to pay the rent/compensation to the Court Receiver directly by the Appeal Court order passed in December, 2005. Thereafter the Court Receiver is specifically directed to collect specified amounts from the three Defendants including Okay Transport since December, 2005. The 9 payment of that amount has been alluded despite directions. This Chamber Summons is for directing the recovery of the amount already directed to be paid. It is seen that both Defendant No.1 and Respondent No.1 Okay Transport have consistently neglected to pay the monthly amount directly to the Court Receiver. Since it is now shown that Respondent No.1 pays only Rs.45,000/- to Defendant No.1 and both these parties have opposed the Chamber Summons, the market value of the premises is required to be determined. Such market value would have to be paid by Okay Transport if it continues its warehousing business from the suit premises. If Okay Transport fails to make payment of such market value, the suit premises would have to be let out to another party who would make such payment. Hence, the following order :- :: O R D E R :: 1. Okay Transport shall pay Rs.70,000/- to the Court Receiver each month. 2. Defendant No.1 shall also pay the arrears of such payment at the rate of Rs.70,000/- to the Court Receiver from January, 2006 till date. 3. If Okay Transport fails to make payment of the further monthly amount of Rs.70,000/- hereafter, the Court Receiver shall appoint a valuer/architect from his panel to value and determine the occupancy charges/rent/ compensation payable in respect of the 10 suit premises. In such case, the Court Receiver shall take possession of the suit premises and hand it over to any other party who would make such an offer by following usual procedure. 23. The Chamber Summons is disposed of accordingly. 24. This order is stayed for two weeks. (R. S. DALVI, J.)