Allowed

Kashinath Lalta Tiwari, Dilip Lalta Tiwari and Bipin Kashinath Tiwari. v. Subhash Jarda Tiwari and 3 Ors.

Bombay HC3 Aug 2012NMA/1770/2012

Case brief

AI extract

What is this about?

High Court granted partial interim stay on the lower court's orders dismissing a Chambers Summons regarding royalty fixation by the Court Receiver. The court imposed conditions for deposit of specific royalty amounts and linked possession of disputed premises to compliance with payment terms during the appeal. It clarified that trial proceedings continue unaffected.

What did the court decide?

Notice of Motion partly allowed; interim stay granted contingent on deposit of royalty based on fixed rates for residential and commercial premises; possession to be surrendered in case of default.

Kashinath Lalta Tiwari, Dilip Lalta Tiwari… — Contract and Commercial Disputes | Bombay HC (2012)

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nm-1770-12 in app-lodg-488-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1770 OF 2012 IN

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APPEAL LODGING NO.488 OF 2012 IN COURT RECEIVER'S REPORT NO.342 OF 2012 IN SUIT NO.3993 OF 1995

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1.Kashinath Lalta Tiwari & Ors. ..Appellants

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Versus

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1.Subhash Jarda Tiwari & Ors. ..Respondents

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Mr. D.D. Madon, Senior Advocate with Mr. K.T. Thomas and S. Joseph for the appellants.

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Mr. Shailesh Shah, Senior Advocate with Mr. Simil Purohit and Mr. H.S. Khokhawala i/b. Nankani & Associates for the respondents.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J.

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DATE : 03 August 2012.

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P.C.

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This Notice of Motion has been taken out for interim stay of the order dated 27 June 2012 as well as the subsequent order dated 25 July 2012 passed by the learned trial Judge of this Court on the Court Receiver's Report No.342 of 2012 and Chamber Summons No.665 of 2012. By the said orders the learned trial Judge has dismissed the Chamber Summons taken out by defendant Nos.2 and 3 for reducing the amount of royalty fixed by the Court Receiver at Rs.1,11,900/-.

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The plaintiff's case is that the plaintiff is the tenant of the suit premises and that the defendant No.1 who was allowed to reside on

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the second floor of Building No.30B not only continued to occupy the said premises even after termination of the license and that original defendant No.1 (the father of defendant Nos. 2 and 3) as well as the defendant Nos. 2 and 3 on the date of filing of the suit, were occupying the first floor and second floor of Building No.30B and that after the Court Receiver made the panchnama, trespassed into the other portions of Building No.30B and also the ground floor and first floor of Building No.30A. There is no dispute about the fact that the third floor of the building No.30B is in possession of the plaintiff.

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When the suit was filed the dispute was between the deceased brothers i.e. plaintiff and defendant No.1 and two sons of defendant No.1 (defendant Nos. 2 and 3). However, during the pendency of the suit the original plaintiff as well as original defendant No.1 have expired and the son of the third brother i.e. son of the brother of original defendant No.1 and original plaintiff filed a Chamber Summons for being brought on record as the heir of the original plaintiff. The newly added plaintiff claims to be the legatee under the Will alleged to have been executed by the original plaintiff in favour of the said nephew.

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At this stage it is not necessary to decide the merits of the controversy between the parties. However, having regard to the fact that the appellants are in possession of a large area of the properties in Gunbow Street, Fort, Mumbai, which is a commercial area and a part of the premises for occupation of defendant Nos. 2 and 3 is also being used for commercial purposes, we are of the view that the interests of justice would be served if the Notice of Motion is partly allowed in terms of the

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following order:-

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There shall be interim stay of operation and execution of the orders under appeal being orders dated 27 June 2012 and 25 July 2012 subject to and upon complying with the following conditions:-

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(i) Defendant Nos. 2 and 3 shall deposit with the Prothonotary & Senior Master of this Court a sum of Rs.10,000/- per month for the first and second floor of Building No.30B, Gunbow Street, Fort, Mumbai.

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(ii) For the other areas in possession of defendant Nos. 2 and 3, defendant Nos. 2 and 3 shall deposit the amount at the rate of Rs.30/- per sq.ft., for the premises being used for residential purposes and at the rate of Rs.60/- per sq.ft., for the premises being used for commercial premises.

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(iii) The appellants shall deposit the amounts at the aforesaid rates with effect from 1 January 2012 as the royalty was first fixed from 18 January 2012 albeit with effect from the date of filing of the suit in the year 1995.

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(iv) The Court Receiver shall carry out the measurements and quantify the amounts payable on the basis of this order within two weeks from today.

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(v) The amounts at the aforesaid rates shall be paid from 1 August 2012 and the arrears for the period from 1 January 2012 till

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31 July 2012 shall be paid in two equal instalments, the first instalment payable on or before 30 September 2012 and the second instalment payable on or before 31 October 2012.

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(vi) As regards the arrears of royalty from the date of filing of the suit till 31 December 2011, defendant Nos. 2 and 3 shall deposit the royalty at the rate of Rs.10,000/- per month for the premises on the first and second floor of building No.30B and the royalty for the other premises the Court will be decided at the hearing of the appeal.

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(vii) It is clarified that pendency of this appeal does not preclude the trial Court from proceeding with the trial of the suit.

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(viii) In case of default the appellants shall surrender that part of the premises in respect of which they have not deposited the royalty. This is on the basis that while depositing the royalty the appellants will indicate for which portion of the premises the royalty is being deposited and the Court Receiver shall thereafter, upon finding whether any default is committed in depositing the royalty in respect of a particular portion of the premises as indicated above, take over the possession of that portion of the premises in respect of which the default is committed.

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Liberty to apply in case of any difficulty.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Kashinath Lalta Tiwari, Dilip Lalta Tiwari and Bipin Kashinath Tiwari. v. Subhash Jarda Tiwari and 3 Ors.

Case brief

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What did the court decide?

Kashinath Lalta Tiwari, Dilip Lalta Tiwari and Bipin Kashinath Tiwari. v. Subhash Jarda Tiwari and 3 Ors.

Case brief

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