IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2735 OF 2008 NOTICE OF MOTION NO. 2735 OF 2008 NOTICE OF MOTION NO. 2735 OF 2008 IN IN IN SUIT NO. 3507 OF 2007 SUIT NO. 3507 OF 2007 SUIT NO. 3507 OF 2007 Kuresh S/o.Rustom Kushesh & Ors. ...Plaintiffs vs. Farokh Khodadad Irani (Yezdegardi) & Ors...Defendants Ms.Mohanty i/b. M/s.S.K.Srivastav & Co. for the Plaintifs. Mr.Kishore Jain i/b. Mr.Tushar Goradia for Defendant Nos.1 to 3. Mr.D.B. Savant for Defendant Nos.4 to 7. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : AUGUST 26, 2008 DATED : AUGUST 26, 2008 DATED : AUGUST 26, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the plaintiffs, Counsel for defendant nos.1 to 3 and Counsel for defendant Nos.4 to 7. 2. This Notice of Motion is taken out by defendant no.4 seeking permission to withdraw 11% of the royalty amount deposited by defendant no.1 as the royalty with the Court Receiver in Suit No.3507 of 2007 pursuant to an order passed by this Court on 20th December, 2007. 3. A suit is filed by the plaintiffs for - 2 - dissolution of the partnership firm and for accounts. In the said suit, the plaintiffs have admitted that defendant no.4 has 11% share in the said property. By Order dated 20th December, 2007, this Court was pleased to appoint defendant no.1 as an Agent of the Court Receiver to conduct the restaurant business on the suit premises. Defendant no.1, accordingly, has been paying the said amount to the Court Receiver. The plaintiffs have taken out a Chamber Summons for enhancement of the royalty which is pending. 4. It is the case of defendant no.4 that she is 86 years old and she was admitted in the hospital and she has no money to pay her hospitalisation. 5. Counsel for defendant no.4 has produced the Medical Certificates and the bill which is given by the Bhatia Hospital. It is submitted that in these circumstances, on humanitarian ground, defendant no.4 be permitted to withdraw her share from the amount deposited with the Court Receiver. - 3 - 6. This is vehemently opposed by the Counsel appearing on behalf of the plaintiffs. She submits that defendant nos.1 to 3 are her sons and they are all taking care of defendant no.4. It is stated that these defendants also have their own independent other business. She submits that if this application is allowed, the other defendants shall also file an application for withdrawal of the said amount. 7. Counsel for defendant nos.1 to 3 submits that he has no objection if the amount of Rs.2,000/- per month is allowed to be withdrawn by defendant no.4. 8. In my view, since it is an admitted position that the defendant no.4 has 11% share in the partnership assets, taking into consideration the peculiar facts and circumstances and considering her age, in my view, defendant no.4 has made out the case for grant of relief as prayed by her in the Motion. However, at this stage, it will not be possible to permit defendant no.4 to withdraw the entire 11% of her share in the royalty amount deposited by defendant no.1. Defendant no.1 is - 4 - depositing an amount of Rs.50,000/- per month towards royalty and 11% of her share comes to about Rs.5500/-. It will not be possible to permit her to withdraw the entire amount of Rs.5500/- since the expenses and costs of the Court Receiver also have to be deducted. 9. It would be appropriate, therefore, if defendant no.4 is directed to withdraw an amount of Rs.2000/- per month deposited by defendant no.1 in this Court. Order accordingly. It is clarified that this order is passed taking into consideration the extreme old age of the defendant no.4 and fact that she is staying separately with defendant no.5 who is also not in a position to maintain her. 10. The Notice of Motion, accordingly, allowed in the aforesaid terms and is disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)