1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1838 OF 2008 IN SUIT NO. 3190 OF 1995 DILIP JAMNADAS TEJURA .. PLAINTIFF Vs. DILIP MANILAL VORA & ORS. .. DEFENDANTS Ms. Priya Thakur with Jayesh Bhatt for plaintiff Mr. R. D’souza i/b Pravin Mehta & Mithi & Co. for D-1,2, & 7. Mr. A.R. Shaikh for R-6 Mr. K. L. Vyas, Court Receiver CORAM:SMT.RANJANA DESAI, J. DATE: 22/5/08 P.C. . This notice of motion is taken out by the 1st defendant in Suit No. 3190 of 1995. This suit is filed for dissolution of partnership firm M/s. Shanti Construction and accounts. M/s. Shanti Construction is defendant 7. 2. Court Receiver was appointed in respect of the 2 suit property by this court by its order dated 21/10/97. On 28/10/98 admittedly the Court Receiver has taken possession. 3. According to the 1st defendant they made a written complaint to the Court Receiver on 16/1/08 stating that some antisocial elements and unauthorized persons have forcibly entered the suit property and are levelling the same and are carrying on some construction activities thereat. Receiver was requested to take immediate steps. It appears that accordingly Receiver visited the suit property and prepared his site report dated 21/1/08. A copy of the said report is annexed to the affidavit of the 1st defendant. The report indicates that when the Receiver visited the suit property he found four security guards employed through Advance Security Services by M/s. Aftab Builders & Developers. It means that the said security guards were guarding the suit property on behalf of the M/s. Aftab Builders & Developers. The Receiver then submitted his report to this court. The said report is dated 26/3/08. The Receiver inter alia noted in the said report that when he visited the suit property guards employed by M/s. Aftab Builders & Developers were found at 3 the suit property. The Receiver sought directions inter alia as to what steps should be taken by the Receiver in respect of encroachment made on the suit property by M/s.Aftab Builders & Developers. 4. On 15/4/08 learned Single Judge of this court (D.B. Bhosale, J.) passed the following order: . "It appears that an appointment of the Court Receiver was made by this Court vide order dated 21/10/1997 in Notice of Motion No. 2357 of 1995 in Suit No. 3190 of 1995. In pursuance of that order, the Court Receiver on 28/10/1998 had taken possession of the suit property from defendant no. 7. According to the plaintiff, M/s. Aftab Builders and Developers have encroached upon the suit property very recently and their possession, as of today, is illegal. In view thereof, the Court Receiver is seeking direction as to what steps should be taken in respect of the encroachment on the suit property by M/s. Aftab Builders and Developers. Having considered all the earlier orders so also the other material placed before this court and the Court Receiver’s Report, the Court Receiver is directed to proceed to take immediate steps to take possession of the suit 4 property with the police aid, if necessary. The Court Receiver to give 72 hours notice to M/s. Aftab Builders before taking possession of the suit property. The report is disposed of." 5. In pursuance of this order, the Receiver went to the suit property on 7//5/08. The Receiver went to the suit property along with one police constable from Kashimira Police Station. The Receiver’s site report dated 8/5/08 is annexed at Exhibit-10 to the affidavit of the 1st defendant. The said report indicates that at the suit property guards employed by M/s. Nida Builders & Developers were present. The said report further indicates that one Rahil Dange alias Chandubhai, representative of Nida Builders objected to Receiver’s affixing the possession board on the suit property. He informed the Receiver that Nida Builders are not party to the court’s order. He further told the Receiver that Nida Builders were nominee of Aftab Builders. Thus obstruction was created by M/s. Nida builders at the instance of M/s. Aftab Builders & Developers. In the circumstances this court’s order could not be executed. 5 6. The present notice of motion is taken out by the first defendant inter alia seeking a direction to the Receiver to remove all structures, boards and all third parties that maybe found on the suit property with full police protection and with the help of Mira-Bhayandar Nagar Palika. When this motion was moved before me on 21/5/08 I had directed the 1st defendant to serve M/s.Aftab Builders & Developers and M/s. Nida Builders & Developers notice informing them that they should make arrangement to keep their counsel and/or representative present in this court at 2-30 p.m. on 22/5/08 i.e. today. Defendant 1 was asked to serve M/s,. Aftab Builders & Developers and Nida builders & Developers by all available modes. Accordingly efforts have been made to serve both these builders. An affidavit has been filed by one Vilas Jadhav, office clerk of M/s. Pravin Mehta & Mithi & Co. who are advocates and solicitors for defendants 1,2 and 7 stating the efforts made to serve the said developers. Affidavit clearly indicates that the said developers have been informed and asked to remain present in the court today. Despite this M/s. Aftab Builders & Developers and M/s. Nida Builders and Developers have not cared to appear before this court. They 6 have indeed shown scant regard for the orders of this court. 7. In the circumstances, I am of the opinion that direction needs to be given to the Receiver to ensure that this court’s order dated 15/4/08 is implemented. 8. The Receiver has drawn my attention to the undertaking /indemnity bond filed by the plaintiff on 7/10/98 at the time when the Receiver took possession of the suit property. A copy of the indemnity bond is taken on record and marked "X". By this indemnity bond the plaintiff has undertaken that he shall preserve the suit property and safeguard the suit property from damages, loss, theft fire etc. It is distressing to note that despite this indemnity bond the plaintiff has taken no steps to protect the suit property. 9. It is apparent that M/s. Aftab Builders & Developers and M/s. Nida Builders & Developers have encroached upon the suit property. Hence I direct the Receiver to take necessary help from Kashimira Police Station and ensure that this court order dated 15/4/08 is implemented. The Receiver 7 shall remove the encroachment made on the suit property either by M/s. Aftab Builders & Developers and/or made by M/s. Nida Builders & Developers and/or by anybody else. 10. Senior Inspector of Police, Kashimira Police Station is directed to give effective police force to the Receiver and not just one unarmed police constable as was done earlier. 11. The orders of this court are to be implemented. The police should ensure and give necessary protection and help to the Court Receiver to see that this court’s orders are implemented. No further directions are necessary. 12. The Receiver shall take necessary steps with the help of police at the earliest i.e. within a period of two weeks from today. 13. Office to provide authenticated copy of this order and authorities to act on it. JUDGE JUDGE