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1989 DIGILAW 108 (CAL)

UNITED BANK OF INDIA v. BHARAT FOUNDRY PRIVATE LTD.

1989-03-10

A.C.SENGUPTA, S.K.HAZARI

body1989
SACHI KANTA HAZARI, J. ( 1 ) HEARD learned Advocates for the appealing parties and perused the application under Section 5 of the Limitation Act. We are satisfied with the cause shown for moving the application under Section 115 of the Code of Civil Procedure beyond the period of limitation. The delay is condoned. ( 2 ) THE revisional application under Section 115 of the Code of Civil Procedure is directed against an Order, dated 31st May 1985 passed by the Fifth Subordinate Judge, Alipore in Title Suit No. 76 of 1981 allowing the application of the Receiver to draw commission at the rate of 5 per cent of the sale proceeds in addition to his fixed salary of Rs. 700 per month upto February, 1985. ( 3 ) THE United Bank of India filed the suit being Title Suit No. 76 of 1981 against the opposite parties defendants for receivers of Rs. 6,70,500. 43 P. calculating interest up to 12th May, 1981. Sri Uday Narayan Ghosh, an Advocate practising at Alipore Court, was appointed Receiver at a fixed salary of Rs. 700 per month, and ultimately as per the Order of the Court the suit property situate at Bonhooghly was sold for Rs. 5,20,000. The Receiver filed an application before the Trial Court for his remuneration for the sale of the suit property in terms of the Order of the Court. The Trial Court directed by the impugned Order that the Receiver would be entitled to a commission of 5 per cent of the sale proceeds. The petitioner has moved the instant application against the said Order. ( 4 ) IT is submitted by Mr. Bhattacharya, Learned Advocate for the petitioner, that the Receiver has already received about Rs. 20,000 on account of monthly salary at the rate of Rs. 700 and the commission of 5 percent on the total sale proceeds as passed by the Court below is without jurisdiction. It is further submitted that no remuneration should be paid to the Receiver as he got monthly salary of Rs. 700 for the purpose of preservation of the property and that the sale of the suit property should be considered as an act done by the Receiver on account of preservation of the property and he should not be paid any commission out of the sale proceeds. ( 5 ) MR. 700 for the purpose of preservation of the property and that the sale of the suit property should be considered as an act done by the Receiver on account of preservation of the property and he should not be paid any commission out of the sale proceeds. ( 5 ) MR. Roy appearing on behalf of the Receiver submits that his client has done various acts including valuation of the property by 3 Chartered valuers, measurement of the property and also made advertisements in the Statesman on 24th July, 1983 and 18th January, 1984, and in the Ananda Bazar Patrika on the above dates. Thereafter the Receiver has attended the intending purchasers on numerous occasions and had to explain to them about the title of the suit property, gave inspection of the copies of the title deeds and has also answered in writing the requisitions an title, finalised the draft conveyance and had to attend the Registry Once at the time of execution of the conveyance. It is submitted by Mr. Roy that the commission of 5 per cent on the sale proceeds is an usual Order. He refers to N. D. Basu's Law of Receivers and submits that the Receiver's allowance is either a percentage on his receipts, or a gross sum by way of salary. Where a commission is allowed, it is generally at the rate of 5 per cent. It is contended by him that the commission of 5 per cent which has been allowed by the Court below was very fair and reasonable. ( 6 ) WE have carefully gone through the facts of the case and we hold that in the case of sale the Receiver is entitled to remuneration but such remuneration should be reasonable and what amount is reasonable will depend on the facts and circumstances of each case, the nature of the property and the price recovered from the sale of the property. In this case the net sale proceeds is Rs. 5,20,000 and the property was a bare urban land. So, considering the facts and. circumstances of this case, we hold that the remuneration of 2 1/2 per cent would be fair and reasonable. We further hold that at the time of granting remuneration to the Receiver the Court should be very particular about the work done by the Receiver and the remuneration should not be excessive. So, considering the facts and. circumstances of this case, we hold that the remuneration of 2 1/2 per cent would be fair and reasonable. We further hold that at the time of granting remuneration to the Receiver the Court should be very particular about the work done by the Receiver and the remuneration should not be excessive. It appears that the Receiver has done various acts and as such he is entitled to the remuneration. We further hold that the monthly salary which was paid to the Receiver does not cover the remuneration of the sale which was made by the Receiver in accordance with the Order of the Court. ( 7 ) WE modify the Order, dated 31st May 1985 of the Court below to this extent that the Receiver will be entitled to commission of 2k per cent of sale proceeds instead of 5 per cent. This Rule is disposed of as above. No order is made as to costs. Amarabha Sen Gupta, J. I agree. Rule disposed of of.