Disposed

Shyamprabha Creation Pvt. Ltd. v. Supriya Shailesh Patel and 3 Others

Bombay HC11 Aug 2014APP/400/2014

Case brief

AI extract

What is this about?

In three appeals, the High Court of Bombay disposed of challenges to court receiver orders requiring an appellant to pay royalty on two bungalows. The Court, pursuant to a consensus among counsel, directed staggered royalty payments, execution of an agency agreement, and tagging or transferring related suits for expedited trial pending the final disposal of the main partition suit.

What did the court decide?

Direction to deposit partial arrears of royalty, pay future royalty, execute agency agreement, and tag or transfer linked suits for joint trial.

Shyamprabha Creation Pvt. Ltd. Vs Supriya Shailesh Patel and 3 Others — Partition | Bombay HC (2014)

appl-450-14

Uday Kambli

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL(L) NO.450 OF 2014

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COURT RECEIVER'S REPORT NO.111 OF 2014

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WITH

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APPEAL (L) NO.412 OF 2014

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COURT RECEIVER'S REPORT NO.213 OF 2010

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WITH

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APPEAL (L) NO.413 OF 2014

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COURT RECEIVER'S REPORT NO.213 OF 2010

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SUIT NO.3416 OF 2006

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Shyamprabha Creation Pvt.Ltd. ...Appellants versus

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Supriya Shailesh Patel and ors. ...Respondents

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Mr.A.Y.Sakhare, Sr.Advocate with Mr.S.s.Joshi and Mr.Vachan Bodke i/b C.Vaitya & Co. for the appellant.

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Mr.Vatsal Shah with Mr.Ayaz Bilawala and Mrs.Priti Tare i/b Bilawala & Co. for respondents Nos. 3 & 4.

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Mr.A.S.Khandeparkar with Mr.Vikas Warerkar i/b Warerkar & Warerkar for respondent No.1.

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Mr.s.S.Deshpande, Court Receiver and Mr.K.K.Trivedi, 1^st to Court Receiver present.

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CORAM: MOHIT S. SHAH, C.J. & M.S.SONAK, J. DATE : 11 AUGUST 2014

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P.C.:

All these three appeals are directed against orders of the Court in Court Receiver's Reports or in the notice of motion taken out in Suit No.3416 OF 2006, which is filed by Supriya Shailesh Patel and others for partition of the suit properties left by Shailesh Patel (who expired on 2 February 2005) and his father Babubhai Patel (who expired on 2 October 2006).

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In view of the order that we propose to pass, it is not necessary to set out all the facts in detail. The appellant herein, who is the third party, has challenged the orders requiring the appellant to pay royalty to the Court Receiver in respect of two of the suit properties. There is a bungalow at Deonar, for which the Court Receiver has fixed the royalty at Rs.1,50,000 per month and there is another bungalow at Kashid, for which the Court Receiver has fixed the royalty at Rs.45,000 per month. The order appointing the Court Receiver was passed on 10 July 2009. The appellant being in possession of the aforesaid two properties was appointed as an agent of the Court Receiver. The said order was not challenged by the Appellant.

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The Court Receiver, thereafter, submitted the Court Receiver's Report No.213 of 2010 seeking directions of the Court to require the appellant to furnish details in respect of the aforesaid two properties and also to direct the appellant to execute an agency agreement.

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The learned Trial Judge of this Court, thereafter, passed an order dated 2 December 2010 directing the appellant to furnish details regarding aforesaid two properties and also to enter into agency agreement with the Court Receiver within two weeks. The appellant filed an affidavit dated 16 March 2011 disclosing the relevant details and contending that Shailesh Patel had entered into an agreement with the appellant to sell Deonar bungalow to the appellant at a price of Rs.80 lakh, out of which Rs.75 lakh has been paid by the appellant to Shailesh Patel and his wife Nilaben from time to time as per the particulars given in the affidavit and therefore the appellant is entitled to get conveyance of the said property in favour of the appellant on payment of balance amount of Rs.5 lakh.

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As regards the bungalow at Khashid, the appellant contended that Shailesh Patel had given contract for construction of the said bungalow to the appellant and the appellant having constructed the said bungalow is entitled to get the amount as per the contract between Shailesh Patel and the appellant. Since, according to the appellant, no amount has been received under the said contract, the appellant is entitled to have a lien over the said property and is therefore entitled to retain possession of the house at Kashid till the appellant is paid the entire amount under the said contract with interest thereon.

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The plaintiff filed affidavit dated 23 June 2011 denying the claim of the appellant.

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On 3 February 2011, another learned Trial Judge of this Court passed an order directing the Court Receiver to determine the amount of royalty. Appeal (L) No.412 of 2014 is filed against the said aforesaid order dated 3 February 2011.

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The appellant filed affidavit dated 12 March 2012 disputing the liability for payment of royalty and plaintiffs filed affidavit dated 7 August 2012 denying execution of agreement to sell Deonar bungalow and stating that entire payment was made of the costs of construction for Kashid bungalow to the appellant.

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On 8 August 2012, the Court Receiver called upon the appellant to pay royalty at the rate of Rs.1,50,000 per month for Deonor bungalow with effect from July 2009 and similarly royalty of Rs.45,000 per month for Kashid bungalow with effect from July 2009. The said order of the Court Receiver is impugned in Appeal (L) No.413 of 2014.

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Since the appellant did not pay any royalty amount as directed by the Court Receiver, the Court Receiver preferred Report No.111 of 2014 seeking direction of the Court to the appellant for payment of royalty and in case of default for permitting the Court Receiver to take over possession of the aforesaid two properties.

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Uday Kambli

By the order dated 17 July 2014, the learned Trial Judge has directed the Court Receiver to take over forcible possession of the aforesaid two bungalows and to recover the arrears of royalty. That order is challenged in Appeal (L) No.450 of 2014.

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When these appeals came up for admission on 23 July 2014, we directed the appellant to deposit Rs.30 lakh, without prejudice to rights and contentions of the parties, as condition for interim protection regarding possession of the aforesaid two bungalows. In compliance with the said order the appellant has deposited Rs.30 lakh with the Court Receiver on 30 July 2014. The Court Receiver, who is present in the Court, confirms having received the said amount.

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It transpires that the appellant, who is claiming rights in Deonar property under an agreement to sell, has filed a suit for specific performance in this Court being Suit (L) No.701 of 2014. The learned counsel for the appellant states that the appellant has also filed another suit being Suit No.88 of 2014 in the Court of Civil Judge, Sr.Division at Alibaugh in respect of the bungalow at Kashid.

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Having heard the learned counsel for parties and having regard to the subject matter of all these proceedings including Suit No.3416 of 2006 and Suit (L) No.701 of 2014 pending before the learned Trial Judge of this Court and Suit No.

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88 of 2014 pending before the Trial Court at Alibaugh, and having agreed by the learned counsel for plaintiffs and defendants in Suit No.3416 of 2006 to dispose of these appeals in the following terms, we are of the view that interests of justice would be served if these appeals are disposed of in terms of the following directions:-

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(i) The appellant shall deposit 50% of the arrears of royalty for both the aforesaid bungalows for the period from July 2009 to July 2014 with the Court Receiver within two weeks from today, after deducting Rs.30 lakh already deposited by the appellant with the Court Receiver;

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(ii) For the period from 1 August 2014 onwards, the appellant shall pay to the Court Receiver royalty at the rate of Rs.1,50,000 for Deonar bungalow and at the rate of Rs.45,000 per month for Kashid bungalow.

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(iii) The amount of royalty for the respective bungalows shall be paid by the appellant to the Court Receiver on or before 10^th of every succeeding month.

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(iv) The amount of royalty at this rate will continue to be paid to the Court Receiver till the final disposal of Suit No.3416 of 2006.

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(v) The amount deposited with the Court Receiver shall be invested in fixed deposit.

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(vi) The appellants shall also execute agency agreement with the Court Receiver in respect of both the aforesaid properties within two weeks from today.

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(vii) At the joint request of the learned counsel for plaintiffs and defendants in Suit No.3416 of 2006 as well as at the request of learned counsel for appellants herein, Suit (L) No.701 of 2014 pending before the learned Trial Judge of this Court shall be tagged alongwith Suit No.3416 of 2006.

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(viii) At the joint request of the learned counsel for plaintiffs and defendants in Suit No.3416 of 2006 as well as at the request of the learned counsel for parties in Suit No.88 of 2014 pending in the Court at Alibaugh, Suit No.88 of 2014 shall be transferred to this Court and shall be heard alongwith Suit No.3416 of 2006.

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Learned counsel for appellants states that appellants will serve copy of the plaint alongwith documents filed in both aforesaid suits to all the defendants in the suits as well as other parties who are parties to Suit No.3416 of 2006 within one week from today. Learned counsel for plaintiffs and defendants in Suit No.3416 of 2006 waive service of summons in both the aforesaid suits.

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(ix) At the joint request of the learned counsel for plaintiffs and defendants in Suit No.3416 of 2006 and the learned counsel for appellants, trial of all three suits is expedited and the learned Trial Judge is requested to take up all suits for trial as expeditiously as possible and preferably by 31 December 2014.

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(x) All three suits will be listed before the learned Trial Judge of this Court on 26 August 2014 under the caption “Direction”.

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(xi) It is clarified that this order shall not come in the way of Testamentary Court hearing and deciding Testamentary Suit No.46 of 2008 with expedition.

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(xii) Appeals stand disposed of accordingly.

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CHIEF JUSTICE

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(M.S.SONAK, J.)

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Shyamprabha Creation Pvt. Ltd. v. Supriya Shailesh Patel and 3 Others

Case brief

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What did the court decide?

Shyamprabha Creation Pvt. Ltd. v. Supriya Shailesh Patel and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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