KAVITA SAILESH RACHH Vs. NAYANA MAHENDRA RACHH

JUDGEMENT

(1.) THIS order shall dispose of notice of motion No.1433 of 1997 taken out by the plaintiff as well as notice of motion No.3005 of 1997 taken out by the defendant Nos.1 to 3, 5 and 6.

(2.) THE plaintiff has filed suit No.4275 of 1995 for dissolution of partnership firm M/s Sailesh Ceramics. The plaintiff claims to have 23% share in the said firm while the other defendants have in all 67% share. The details of the averments made in the plaint need not be gone into in view of the controversy raised in the two notices of motion. It may be observed that in the notice of motion taken out by the plaintiff, by an order dated 28th November 1995, this Court has appointed Court Receiver over the assets of the firm M/s Sailesh Ceramics. To appoint its agent, the Court Receiver was directed to hold bidding between the plaintiff and defendant No.1 to 4 and appoint one of the parties as his agent on such terms and conditions as to payment of royalty, but without security. The Court Receiver held the meetings and on 22nd December 1995, the plaintiff gave the highest bid for Rs.1,10,000/- p.m. as royalty, the defendant No.3 gave the bid for Rs.1,05,000/- p.m. as royalty while the defendant No.2 gave the bid for Rs.90,000/- p.m. as royalty. Since the plaintiff was the highest bidder, the Court Receiver accepted the bid of the plaintiff. Later on, it appeared that the plaintiff was not able to go on with the agency and accordingly expressed her unwillingness. A fresh bidding took place before the Court Receiver on 29th January 1996 and defendant No.4 gave the highest bid for Rs.25,000/- p.m. as royalty while the defendant No.1 gave an offer of Rs.20,000/- p.m. as royalty. The Court Receiver found that the offer given by the defendant No.4 for Rs.25,000/- p.m. was on the lower side looking to the nature of the business, location of the property and the earlier offer given by the parties themselves and accordingly, submitted his report to the Court for directions. By an order dated 1st February 1996, this Court, as a tentative measure, and by way of an adhoc basis, directed the Court Receiver to accept the bid of defendant No.4 for a sum of Rs.25,000/- p.m. as royalty. It was made clear that if the Court Receiver receives any higher offer from other parties to the suit or from third party for user of the partnership assets, the Court Receiver would seek necessary directions from the Court. In this background, the defendant No.4 was appointed as an agent of the Court Receiver on royalty of Rs.25,000/-p.m. It appears that on surprise check by the representative of the Court Receiver, alongwith defendant No.4 some other persons were also found in use of the partnership assets and accordingly, the Court Receiver dispossessed the defendant No.4 for having breached the agency agreement. The said decision taken by the Court Receiver was however set aside by this Court since it was taken behind the back and without notice to defendant no.4. Thereafter, the plaintiff took out notice of motion No.66 of 1996. In this notice of motion, this Court by an order dated 18th October 1996 directed the Court Receiver to call for bids from third parties, and parties to the suit were also permitted to give their bids. Certain other terms and conditions were also mentioned in the order dated 18th October 1996. Pursuant thereto, the Court Receiver published a notice inviting bids in 'Times of India', a daily in English and 'Bombay Samachar', a daily in Gujrathi. In the said bid, the defendant No.2 gave an offer of monthly royalty of Rs.10,000/- while the defendant No.3 gave an offer of Rs.15,000/- p.m. as royalty. None of the other parties nor any third party gave any offer, nor the defendant No.2 and defendant No.3 showed their willingness in raising their offers.The Court Receiver vide his order dated 6th May 1997 accepted the offer of defendant No.3 for monthly royalty of Rs.15,000/- and directed the defendant No.3 to execute agency agreement on stamp paper and also give three months' advance royalty alongwith the undertaking. Later on, in terms of the order passed by this Court, the Court Receiver has directed the defendant No.3 to deposit a sum of Rs.5,00,000/- at the time of granting of agency to him. In notice of motion No.1433 of 1997, the plaintiff seeks to challenge the order of the Court Receiver dated 6th May 1997 whereby the offer of defendant No.3 is accepted for giving agency at the rate of Rs.15,000/-p.m. While the defendant No.3 in notice of motion No.3005 of 1997 seeks to challenge the order of the Court Receiver whereby it is directed to him to deposit a sum of Rs.5,00,000.

(3.) THE dispute is between the parties who appear to be family members and were partners in firm M/s Sailesh Ceramics. The plaintiff, on the one hand, claims to have 23% share while the defendant Nos.1 to 4 collectively hold 67% share. The Court Receiver has also been appointed by the order of this Court and presently on adhoc basis, the defendant No.4 is acting as an agent of the Court Receiver. Miss Rodrigues, the Court Receiver is present in Court and she made a statement that defendant No.4 has been making the payment of royalty at the rate of Rs.25,000/- p.m. regularly and that the plaintiff is also withdrawing her share. Be that as it may, the fact remains that though the defendant No.4 is presently acting as an agent of Court Receiver on adhoc and tentative basis, yet he is depositing royalty at the rate of Rs.25,000/- p.m. In this fact situation, obviously the offer of defendant No.3 at the rate of Rs.15,000/- p.m. cannot be justified and cannot be accepted. Since according to the plaintiff, the value of the assets of the partnership firm exceeds Rs.2 crores and the royalty of Rs.25,000/- is also grossly inadequate and on the other hand the defendant No.3 is not prepared to disclose the tentative and rough valuation of the partnership assets and his counsel has only made a bald statement that the valuation suggested by the learned counsel for the plaintiff is exorbitant and excessive. In my view, interest of justice would be served if the firm's assets are first got valued by the Court Receiver through approved valuer and then fresh steps are taken by inviting bids of the parties as well as third parties for acting as agent of the Court Receiver and then fix the royalty accordingly. Till that time and till the new agent is appointed, the tentative arrangement of agency in favour defendant No.4 may continue and in default of payment of royalty, the Court Receiver shall be liberty to seek appropriate directions from the Court.