1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY' CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.15 OF 2008 IN CIVIL APPLICATION NO.2270 OF 2008 IN FIRST APPEAL NO.309 OF 2008 M/s.Deepti Air Systems & Fabricators Pvt.Ltd : Petitioners and anr. Versus Smt.Shanta Widow of P.V.Venkatesh and anr. : Respondents. And The Court Receiver, High Court Bombay. : Respondent. Mr.A.A.Siddiqui i/by A.A.Siddiqui & Associates for the Petitioners Mr.Mohankumar for the Respondent No.1. CORAM : R.M.SAVANT, J DATED : NOVEMBER 18, 2008 P.C. 1. By the above Petition, the Applicants/Original Appellants in the above First Appeal seek review of the order dated 12th August 2008 passed in Civil Application No.2270 of 2008. By the said order the Civil Application filed by the Applicants/Original Appellants for the relief that the Applicants may be directed to pay the royalty for the 2 premises occupied by them on such rate as this Court may deem fit and proper, came to be rejected. 2. The review sought is inter alia on the grounds urged in the Review Petition. The ground for review is principally ground of error apparent on the face of record finds place in Ground (a). Other Grounds (b) to (t) are virtually the grounds on which the matter is sought to be reargued by the learned counsel for the Applicants in support of the relief that the royalty fixed by the Court Receiver should be re-determined and this Court should fix a royalty which it deems fit and proper. 3. The above First Appeal No.309 of 2008 has been filed by the Applicants against the dismissal of their suit being Short Cause Suit No.3340 of 2004. The said suit was filed by the Applicants for protecting their possession of the suit premises being Gala No.46 in New Navnandan Industrial Premises Co-operative Society Limited at Mulund (Mumbai). The said suit came to be dismissed by the City Civil Court by its Judgment and Decree dated 28/12/2007. During 3 pendency of the said suit, Court Receiver, High Court Bombay was appointed as a Receiver in respect of the premises in question and the Court Receiver, after hearing all the parties concerned, submitted a Report dated 1/11/2007 fixing the royalty at Rs.30,000/- per month. The said royalty was fixed, as the Report discloses, after taking into consideration all the relevant factors and also after hearing Shri Agrawal, the learned counsel appearing for the Applicants before the Court Receiver. In the light of the said Report of the Court Receiver, this Court did not find it fit to enter into the exercise of re-determining the final royalty fixed by the Court Receiver for the premises in question. This Court, therefore, rejected the said Civil Application No.2270 of 2008 filed by the Applicants. After rejecting the said Civil Application, certain directions were issued as regards the arrears, which according to the Respondent No.1, were to the tune of Rs.8,92,000/-. The said arrears were directed to be deposited in the following manner :- (i) by depositing Rs.3,00,000/- by 12/09/2008; (ii) by depositing Rs.3,00,000/- by 12/10/2008 (iii) by depositing balance amount of Rs.2,92,000/- by 4 12/11/2008. Apart from the said deposit, the Applicants were obliged to pay monthly royalty of Rs.30,000/-. The amount of Rs.8,92,000/- that would be deposited by the Applicants, was made subject to the final accounting at the time of final hearing of the above First Appeal. As indicated above it is this order of which a review is sought by the Applicants. As mentioned earlier the said review is sought principally on the ground that there is an error apparent on the face of record. 4. On behalf of the Respondent No.1 an Affidavit in Reply has been filed wherein an objection as regards the maintainability of the above Review Petition is taken on the ground that the Applicants had filed an SLP in the Apex Court being Special Leave to Appeal (Civil) Nos. 22908 / 2008 challenging the said order dated 12th August 2008 and in view of the withdrawal of the said SLP by the Applicants, the above Review Petition was not maintainable. The Affidavit further goes on to state that no ground for review of the order dated 12th August 2008 is made out. 5 5. The learned counsel for the Applicants, in view of the objection raised on behalf of the Respondent No.1 as regards the maintainability of the above Review Petition, relied upon the Judgment of the Apex Court in the matter of Kunhayammed and others v/s. State of Kerala and another, reported in AIR 2000 SC 2587. The Apex Court in the said Judgment held that unless a special leave to appeal is granted by the Apex Court, the dismissal of the SLP would not amount to the order of the High Court merging in the order of the Apex Court and a review application would, therefore, be maintainable. In view of the said Judgment of the Apex Court, Shri Mohankumar, the learned counsel appearing for the Respondent No.1, fairly concedes that the above Review Petition is can be entertained. 6. The question which arises is, whether any ground for review of the order dated 12th August 2008, passed by this Court, is made out. In so far as ground of error apparent on the face of record is concerned, the learned counsel for the Applicants is not in a 6 position to demonstrate as to how there is an error apparent on the face of record, in so far as the order dated 12th August 2008 is concerned. All the submissions made by the learned counsel for the Applicants revolve round the merits of fixation of the royalty of Rs.30,000/- per month by the Court Receiver. The learned counsel for the Applicants, therefore, virtually wants to re-argue the said Civil Application No.2270 of 2008 which, in my view, is impermissible. 7. The learned counsel for the Applicants, in support of the challenge to the royalty fixed, relied upon upon Rules 591 and 988 of the Bombay High Court (Original Side) Rules, 1980 contending that the said Rules have not been followed. The said submission of the learned counsel for the Applicants is totally misconceived. A reading of Rule 591 makes it clear that the said Rule is applicable only for fixation of the fees of the Court Receiver and not for royalty fixed for any premises in respect of which the Court Receiver is appointed. In so far as Rule 988 is concerned, a reading of the said Rule would also indicate that the said Rule mandates the Court Receiver to follow the usual procedure. Therefore, the said Rules cannot be invoked for 7 impugning the royalty fixed. 8. As indicated earlier in this order as also the order of which the review is sought, the Court Receiver has fixed royalty after taking into consideration all the relevant factors. Significantally the Applicants did not challenge the royalty fixed in the above First Appeal as there is no ground in the First Appeal to that effect and in fact as the Report of the Court Receiver indicates, the learned counsel for the Applicants had sought time to deposit the arrears of royalty fixed by the Court Receiver at Rs.30,000/- per month. In my view, therefore, no ground as contemplated under Order 47 of the Code of Civil Procedure for review of the said order dated 12th August 2008 is made out. It would also be pertinent to note that though an indulgence had been shown to the Applicants by granting installments as regards payment of arrears of Rs.8,92,000/-, not a single installment is deposited and the endeavour, it apppears, is to file proceedings after proceedings. The Applicants, therefore, would pay costs of Rs.3,000/- to the Respondent No.1 payable within four weeks from date. 8 9. The above Review Petition is accordingly rejected. [R.M.SAVANT, J]