spb/- 1 28-10-ao1237-1238-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION APPEAL FROM ORDER NO. 1237 OF 2009 WITH C.A. NO. 1550/2009 IN A.O.NO.1237/2009 ALONGWITH APPEAL FROM ORDER NO. 1238 OF 2009 WITH C.A.NO.1551/2009 IN A.O. NO.1238/2009 Mallika Mahendra Gandhi & Ors. ... Appellants. Vs. Bhagwanji Ratansi Gandhi (since deceased) Jagruti Mudrak Kapadia & Ors. ... Respondents. --- Mr. Bharat Joshi for the Appellants in both the A.Os. Mrs. Manisha Mehta for the Respondent No.1A. ----- CORAM : J. H. BHATIA, J. DATE : 28TH OCTOBER, 2010. P.C. 1 Heard the learned counsel for the parties in both the AOs. 2 Short Cause Suit No. 2563/1990 was filed for dissolution of the partnership firm and the accounts thereof. The plaintiff had taken out a Notice of Motion No. 1850 of 1990 with two prayers. As per prayer clause (a), he sought appointment of court receiver for all assets, spb/- 2 28-10-ao1237-1238-10.sxw properties, debts, books of accounts etc. of the partnership firm along with the premises at ground floor in Botawala Building. In prayer clause (b) he sought injunction, restraining the defendants from interfering in possession of the plaintiff over premises at 10/A Noble Chambers, Parsi Bazar Street, Bombay. 3 From the Rozanama dated 16.04.1990 it appears that the trial court appointed the court receiver in terms of prayer clause (a) of the motion and also directed the defendant to act as agent of the receiver. However, it appears that the after the said order, on 3rd May, 1990 at the request of the parties, a meeting of the parties was held by the court receiver. As per the minutes of the said meeting, it was mainly agreed between the parties that the plaintiff will operate from the premises at Botawala Building while the defendants would operate from the premises at 10/A Noble Chambers. The plaintiff continues to be in possession and operation from Botawala Building since then. The court receiver had never taken possession of the premises at Botawala building from the plaintiff. At the same time, the original defendants also continued to operate from the premises at 10/A Noble Chambers as per the said arrangement between the parties in terms of the minutes of the meeting held on 3rd May, 1990. There is nothing on record to show that this spb/- 3 28-10-ao1237-1238-10.sxw arrangement was placed before the court and the court had passed any order in respect of the same. There is nothing to show that the court had refused to accept the said interim arrangement but the fact remains that the said interim arrangement continued till date. The original defendant no.1 died in the year 1998 and till his death he was operating from Noble Chambers. It appears that after his death the plaintiff had taken possession of the premises in Noble Chambers and according to the learned counsel for the plaintiff his son, being grand -son of the deceased-defendant, is entitled to be in possession of the same. No such arrangement was ever approved by the court. 4 It appears that the court receiver issued letter dated 5th September, 2008, informing about his intention to take possession of the premises in Botawala building and to hand over the possession of the same to the legal heirs of the defendant no.1 as an agent of the court receiver. That letter was challenged by the plaintiff by taking out the chamber summons Exh.21. The chambers summons was rejected by the trial court, as per the impugned order dated 19th September, 2009. The said order is challenged in Appeal from Order No. 1237/2009. 5 It also appears that on Court Receivers Report No. 433/2008, the spb/- 4 28-10-ao1237-1238-10.sxw trial court passed an order dated 6th October, 2009, directing the court receiver to take physical possession of (i) Hindustan Stantionary Stores situated at Noble Chambers, Fort, Mumbai and (ii) Suit premises at ground floor, Botawala Building, Sir. P.M.Road, Fort , Mumbai, from the plaintiff and/or from whomsoever found in possession by breaking open the locks with the help of police and keep the same under the lock and seal until further orders. That order is challenged in Appeal from Order No. 1238 of 2009. 6 As pointed out earlier, even though the trial court had passed order on 16th April, 1990, appointing the court receiver for premises in Botawala Building and had appointed the defendant as agent thereof, that order was never acted upon in view of the minutes of the meeting dated 3rd May, 1990 and the plaintiff continued to operate from the premises in Gotawala Building and he further continues to operate from the same even till date. The decree for dissolution of the partnership and for accounts has already been passed and it appears that the court receiver is continued even after that. In view of the above circumstances, I do not see any reason for the court receiver to take back the possession of the premises in Gotawala Building at this stage from the plaintiff. spb/- 5 28-10-ao1237-1238-10.sxw 7 However, it also needs to be noted that as per the minutes of the meeting dated 3rd May, 1990, the defendant was to operate from 10/A Noble Chambers and after his death there was no arrangement about the same. The plaintiff appears to have taken possession of the same. Therefore, the trial court was justified in appointing the court receiver and directing the court receiver to take possession of the Noble Chambers because prima facie the plaintiff had acted in violation of the minutes of the meeting dated 3rd May, 1990, which was an arrangement accepted by both the parties, after the court had passed the order for appointment of the court receiver. 8 In view of these circumstances, I do not see any reason to set aside the order dated 6th October, 2009 as far as it relates to Noble Chambers. However, no purpose would be served by keeping it under lock and key. Therefore, it would be advisable that the trial court or the court receiver should appoint some suitable person from amongst the legal heirs of the deceased -defendant as agent of the court receiver. 9 Therefore, the Appeal from Order No. 1237 of 2009 is allowed and the Appeal from Order No. 1238 of 2009 is also partly allowed in respect spb/- 6 28-10-ao1237-1238-10.sxw of the premises in Botawala Building with clarification that the plaintiff/appellant shall be treated as agent of the Court Receiver and shall executed documents accordingly . 10 However, Appeal from Order No.1238/2009 in respect of the Noble chambers is hereby rejected. The court receiver shall take possession of the premises in Noble Chambers either from the plaintiff and/or from whosoever may be in possession and if need be, by taking help of police. Initially the court receiver shall put the said premises under lock and thereafter, the court receiver may appoint any of the legal heirs of the deceased -defendant, who are already brought on record in the suit, as agents in respect of the premises in Noble Chambers. 11 At this stage, Mr. Bharat Joshi, learned counsel for the plaintiff also makes a statement that the appellant nos. 2 and 3 who are in possession of the premises in the Noble Chambers, shall hand over the possession of the said premises in the Noble Chambers to the Court Receiver upto 15th November, 2010. The statement is accepted. The court receiver to take possession of the said premises on 15th November, 2010. spb/- 7 28-10-ao1237-1238-10.sxw 12 Both the Appeal from Orders stand disposed off in the above terms. All the civil applications also stand disposed of accordingly. [J.H. BHATIA, J.]