1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2485 OF 1997 Salimabai Abdul Latif Dada & Ors. ..Plaintiffs versus Omprakash Tripathi ..Defendant Ms. Snehal Paranjape with Mr. Joel D’souza i/b. M/s. Federal & Rashmikant for Plaintiffs. None for Defendant. CORAM : DR. D. Y. CHANDRACHUD , J. DATED : 7TH JULY, 2009. P.C. : 1. The 1st Plaintiff is a sole surviving executrix of the Will of late Haji Dawood Haji Ellias in respect of the immovable property bearing Cadestral Survey No. 67/1187 at Frere Road, Mody Bay Estate. The Plaintiffs are also trustees under an Indenture dated 12th January 1933 of certain immovable property consisting of lands and buildings situated at Fergusson Road. In respect of the Frere Road property apart from the 1st Plaintiff her brother Abdul Hamid Haji Dawood was an Executor who expired on 29th May, 1996. 2. The Defendant was employed as a rent collector by the Plaintiffs. 2 According to the Plaintiffs, the Defendant committed serious acts of default and misappropriation of the rent collected by him and left service with effect from 28th February 1996. In his capacity as a rent collector the Defendant was in occupation of a room bearing No. 35 in Chawl No. 267 /275B in the property at Fergusson Road. During his lifetime, Abdul Hamid Haji Dawood was managing the property at Frere Road through the Defendant. According to the Plaintiffs Abdul Hamid Haji Dawood was of an advanced age and was suffering from a terminal disease. The Defendant took undue advantage of his ill health and upon the death of Abdul Hamid Haji Dawood started managing the properties. The Defendant, according to the Plaintiffs, collected the rent but deliberately failed to deposit the amount in the account of the Plaintiffs. The Defendant is alleged to have committed misappropriation to the extent of Rs.3,92,075/-. According to the Plaintiffs, large amounts were due and payable by the estate of the Trust to Statutory Authorities on account of repair cess, property tax etc. Warrants of Attachment came to be issued in respect of the property from time to time. Thereafter payments came to be made to the Assessor and Collector of the Municipal Corporation. The Plaintiffs have averred that arrears in excess of Rs.8,00,000/- were due and payable in respect of the property. Upon being confronted with his conduct the Defendant is alleged to have given a written undertaking dated 30th July 1996 assuring that a sum of Rs. 3,92,075/- shall be returned within the stipulated period of four months 3 failing which the plaintiffs would be free to adopt necessary proceedings in accordance with law. 3. The suit has been filed for the recovery of an amount of Rs. 3,92,075.80 together with interest, for mesne profits, for a decree directing the Defendant to quit and vacate the room in his possession and for a permanent injunction restraining the Defendant from holding himself out as rent collector of the Plaintiffs. 4 During the course of interlocutory proceedings, an Order was passed on 1st August 1997 by this Court injuncting the Defendant from creating third party rights or from inducting any person or persons into or from converting his unlawful possession into joint possession with any person or persons. Subsequently, on 16th April, 1998, the Court Receiver came to be appointed as Receiver of the said room subject to the clarification that the Receiver would not take forcible possession from the Defendant. The Court has been informed during the course of the hearing that by a subsequent Order dated 18th March, 2000, on the report of the Court Receiver, the Receiver was permitted to take possession of the suit room from the Defendant upon a default on the part of the Defendant in complying with the terms prescribed by the Receiver as to the payment of compensation. 4 5. The Defendant has been served with the writ of summons. At the ad interim stage, the Defendant had entered appearance through an Advocate. The writ of summons was accepted by the Advocate on behalf of the Defendant. As the Defendant failed to file a written statement, on 30th July 2004, the suit was directed to be transferred to the list of Undefended Suits. 6. The Plaintiffs have filed an affidavit in lieu of the Examination-in- Chief of the 3rd Plaintiff along with a compilation of the original documents. Among the documents is the undertaking furnished by the Defendant on 30th July 1996 acknowledging that an amount of Rs. 3,92,075.80 which had been collected towards rent had not been deposited by him in the account of the trust. In the absence of any contest by the Defendant, the averments contained in the plaint and the evidence that has been adduced on behalf of the Plaintiffs, have gone unchallenged. The Plaintiffs have duly proved that the Defendant has collected an amount of Rs.3,92,075.80 for and on account of the rent of the trust properties and failed to deposit it in the account of the trust. The Defendant is in unlawful occupation of the premises of the trust. 7. The suit would have accordingly to be decreed and is accordingly decreed in terms of prayer clauses (a), (c), (d) and (f). In so far as the prayer for mesne profits is concerned, the Commissioner for taking Accounts shall 5 cause an enquiry to be made into mesne profits. The Court Receiver shall hand over possession of the suit room to the Plaintiffs and shall thereupon stand discharged. (DR. D. Y. CHANDRACHUD, J.)