TMI Blog1998 (5) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... . Building No. 3 Co-operative Housing Society, which is admittedly in occupation of the defendant No. 1 and the tenancy of the said Shop No. 6 stood in the name of the deceased Chimanlal. According to the prima facie observation of the learned Judge, there was some case in favour of the plaintiff in respect of Shop No. 6 and, therefore, he was pleased to appoint Court Receiver for the tenancy rights in respect of the Shop No. 6 also, while appointing Court Receiver for the other Estate of the deceased. He further directed the Court Receiver to appoint the first defendant as his Agent in respect of Shop No. 6 on such terms and conditions as may be fixed by the Receiver, but without any security. Accordingly, the learned Judge was pleased to dispose of the Notice of Motion. The aforesaid order of the learned Judge was carried in appeal, but the Appeal Court had dismissed the Appeal on 8th April, 1996. It appears that the Court Receiver had fixed an ad-hoc royalty for the Shop No. 6 at the rate of ₹ 5,000/- per month and the Court Receiver called upon the defendant No. 1 to pay the sum of ₹ 55,000/- for the period from August 1995 to June 1996 towards the amount of royalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st defendant has filed the present Chamber Summons for determining the question whether royalty can be fixed at the rate beyond the actual rent payable by the tenant to the landlord. Both the parties have been vehemently contesting the suit at every stage and for every small point, obviously so because they belong to one and the same family and are the real brothers and sisters. The learned Counsel for the defendant No. 1 has submitted that by the orders of Justice A.R Shah, the Court Receiver was directed to-appoint the 1st defendant as his Agent in respect of Shop No. 6 on such terms and conditions as may be fixed by the Receiver but without security. According to the learned Counsel for the defendant No. 1, the Court Receiver could not fix the final amount of compensation/royalty more than the actual rent payable to the landlord for the shop premises in question, i.e. ₹ 169/- per month which his client is ready and willing to pay every month. The learned Counsel further submitted that by charging ₹ 5,000/- per month as the amount of royalty, the Court Receiver is trying to make profit as he would pay ₹ 169/- per month, while he has called upon the defendant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of royalty would depend upon various other factors, such as, the location of the place etc. and further what such a place would fetch if given to a stranger or outsider. By his order, Justice A.P. Shah had appointed the Court Receiver for the Shop No. 6, and had directed him to fix such terms and conditions but not any security. It appears that the Court Receiver understood from this order that he has to fix an amount of royalty also. He has, therefore, fixed ₹ 5,000/- per month the amount of royalty/compensation for the shop after getting a Valuation Report which suggested ₹ 7,000/- per month. The Court Receiver has reduced this amount to ₹ 5,000/- giving some semblance of reasons to reduce the amount of royalty/compensation to ₹ 5,000/- per month. The Valuation Report is based on various factors, such as, situation or location of the property etc. The Division Bench presided over by Justice Pendse has clearly mentioned that it would not be appropriate to fix the royalty amount with reference to the valuation of the properties in the area in which the flat and the shop are situated. The learned Judges have not further elaborated and have not given any posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyal power, i.e. royalty. Like the Royal Houses, even a private citizen appears to have borrowed the language of royalty for compensation. It is further clear from the definition that not only the owners of a right as a patent or oil or mineral right, but even authors of some literary or lyric works started getting a percentage of the retail price on each copy sold, and such an income was also labelled as royalty. It appears that the concept of royalty is to compensate a right of an owner or property who permits or allows others to use his rights from his property. It is thus crystal clear that the amount of royalty or compensation is to be paid to the owner and no one else. In the Court proceedings, it appears that to safeguard the rights of the parties till their rights are finally adjudicated, the users of such rights or property are required to pay or part with a specific amount to be kept with a third party, i.e., in the present case the Court Receiver, who would preserve such rights or properties during the pendency of the litigation. According to me, therefore, the royalty is to compensate the owner of a right or a property and it cannot exceed the concept of compensation. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ownership of the Shop No. 6 is yet to be decided. During the pendency of the litigation, the property must be preserved. The Courts appoint Court Receivers for preservation of the property till the rights are finally determined after adjudication. From this angle, the concept is somewhat different. As is seen, royalty is always charged by the undisputed owner of a right or a property. As is presently seen, where the ownership rights are not determined, it is the duty of the Court to preserve the property and to preserve the property, the Court appoints its own agent, i.e., the Court Receiver. The Court Receiver is entrusted with the duty to take every such action which would protect the property. Since there are no judicial guidelines laid down anywhere, everyone gropes in the dark and some amount of royalty is fixed without any real basis. As is presently seen, the Valuation Report had suggested ₹ 7,000/- per month, while the Court Receiver has reduced it to ₹ 5,000/ - per month but the reduction is not based on any cogent and legal basis. More or less, it is the ipse dixit of the person taking such a decision. It is also clear from the judgment of the Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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