1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.1957 of 2006 IN Suit No.2435 of 2005 Indu Patel & anr. ... ... Plaintiffs v/s. Sudha Chowgule & ors. ... ... Defendants Mr.J.P. Sen i/by M/s.Federal Rashmikant for Plffs. Mr.Karl Shroff with Mr.Ankit Lohia i/by M/s.Crawford Baylay & Co. for Deft.No.1. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 9th April, 2010 P.C. : 1.This Notice of Motion has remained pending since 2006 after a statement was made on behalf of Defendant No.1 upon the application for ad interim reliefs. No Affidavit-in-reply is filed by any of the Defendants. The dispute is between the Plaintiffs and Defendant No. 1 only. Certain documents have been produced by one Shinhan Bank on 29.3.2010 upon certain directions passed by this Court earlier. Thereafter the Notice of Motion was adjourned. Defendant No.1 has not filed an Affidavit-in-reply. Mr.Shroff applies for further time. Application refused. 2 2.Plaintiff No.2 has filed a Suit on behalf of Plaintiff No.1, who was stated to be mentally incapacitated at the time of the filing of the Suit. Plaintiff No.1 has since expired. Defendant No.1 is the daughter of Plaintiff No.2. Plaintiff No.2 and Defendant No.1 are sisters. This Notice of Motion is in respect of licences created by Defendant No.4-Company in which Plaintiff No.2 and Defendant No.1 both claim interest. The Company is essentially an asset-based Company which has created certain licences in respect of flats in a building called Kanchanjunga at Peddar Road, Mumbai. The dispute in this Notice of Motion relates to two flats on the 9 th and 14 th floors of the said building. 3.Both the flats are stated to be licensed by Defendant No.4-Company to the South Korean Consulate (the Consulate). Admittedly, these flats were earlier licensed by one Nimesh Patel and Madhurika Patel. The licence agreements have not been produced. The Plaintiffs claim that these are withheld by Defendant No.1 in certain Safe Deposit Lockers, 3 of which are in the Company premises. 4.The Plaintiffs also claim that in the Financial Year 2004-05, the transactions of the aforesaid Nimesh Patel and Madhurika Patel came to be reversed in the Company 3 records, upon they surrendering the flats to the Company. The Plaintiffs have relied upon the balance- sheet of the accounting year 31.3.2004, Assessment Year 2004-05 of Defendant No.4-Company. A part of the extract of the balance-sheet, which is annexed to the additional Affidavit-in-support of the Notice of Motion filed by the Plaintiffs shows initially an advance against the premises of certain parties. There is no advance shown against Nimesh Patel and Madhurika Patel. In the said balance-sheet under the head other liabilities , the liabilities against Nimesh Patel and Madhurika Patel are shown to be to the extent of Rs.40 Lakhs and Rs.20 Lakhs respectively. The Plaintiffs claim that upon surrender of the flats by them the amounts paid by them were shown as their liability of the Company to them. This proceeds on a footing that though admittedly the flats belong to them and may have been licensed by them, they have surrendered the flats without obtaining return of consideration. Further balance-sheets are not produced and hence how this liability is discharged or how these creditors of the Company have dealt with the amounts paid by them but not returned, is not shown. 5.It is contended that the flats concerned in this Notice of Motion, which were in occupation of the Consulate, did not generate income by way of licence fees in the 4 records of the Company. It is alleged by the Plaintiffs that Defendant No.1 herself appropriated the licence fees. Since the Plaintiffs would have to rely upon the documents of the Consulate and its bankers to show how the amounts of licence fees were disbursed by the Consulate, which had to be disbursed in favour of Defendant No.4-Company, certain directions came to be passed in this Notice of Motion, pursuant to which the Consulate has submitted 5 letters stated to be debit instructions given to their bankers to allow Defendant No.1 and one V.S. Shamsuddin to collect the cash on behalf of the Consulate by way of licence fees payable by the Consulate. 6.The bankers have produced the extract of the Statement of account of the Consulate relating to the payment of licence fees and certain debit instructions of the Consulate. There are 5 debit instructions of the Consulate and 5 such Bank entries. Both of these show cash required to be paid and actually paid in respect of 2 entries to Defendant No.1 and in respect of 3 other entries to the said V.S. Shamsuddin. The Plaintiffs contend that Shamsuddin was the agent or representative of Defendant No.1 who collected the amount on her behalf. The Statement of account of the Korean Consulate does show cash paid to Defendant No.1 in two sums of USD 66,000/- and 64,000/- on 7.7.2004 5 and 1.10.2004, respectively. That fact is beyond dispute in view of the documentary evidence produced by the Bank as directed by this Court certified under the Bankers Book Evidence Act, raising a presumption as to the correctness of these entries. 7.This Notice of Motion has been taken out since 2006. An application for ad-interim injunction came to be made on 12 th July 2006. Defendant No.1 was represented by her Counsel on that day who made certain statements which came to be recorded in the order dated 12 th July 2006, pursuant to which further ad-interim relief was not granted to the Plaintiffs on that day. Defendant No.1 was, therefore, served with the Notice of Motion and the Affidavit-in-support thereof since July 2006. No Affidavit-in-reply has been filed for the last more than three and half years while this Notice of Motion remained pending. On 12 th July 2006, under instructions of Defendant No.1, the Counsel on behalf of Defendant No.1 had made a statement to Court that presently the South Korean Consulate was not paying any licence fees / rent / caretaker charges / deposit or any other charges in respect of the premises mentioned in prayer (a) of the Notice of Motion. 8.The Bank Statement shows that the payments were earlier made to Defendant No.1 directly on 7.7.2004 and 6 1.10.2004. It is not known to whom the Consulate made payments after these 5 payments were made as aforesaid. Mr.Sen on behalf of the Plaintiffs upon my query, confirms that thereafter such payments have not been made to Defendant No.1 at-least from the account of the bankers which is produced before this Court. 9.For want of any Affidavit-in-reply filed by Defendant No.1 to the Notice of Motion since the last four years and even to the documents produced by the Bank since the last date of hearing, the apprehension shown by the Plaintiffs is required to be considered. Further the facts as reflected in the documents produced by the Bank which cannot be controverted merely by denial reflect the true factual position. 10.The relief of restoration of property thus shown to be appropriated only by Defendant No.1 personally is sought. 11.The other 3 entries have been made to another person who is at present not available and against whom no reliefs are sought. 12.After the filing of the Suit, Court Receiver came to be appointed by this Court on 7.9.2006. Thereafter in certain proceedings, taken out by the parties in the Apex Court, a private receiver came to be appointed in April 2009. He is appointed Receiver of the assets of Defendant No.4-Company. It is for the Plaintiffs to 7 pursue their reliefs with the private receiver who is required to protect the assets of the Company which are the suit properties and to bring back into the suit the assets lost to the Company. I am told that in view of this Notice of Motion, the private receiver has not acted in respect of either the aforesaid transactions or in respect of any other transactions for the two flats on the 9 th and 14 th floors which are subject- matter of this Notice of Motion. 13.Since the private receiver is appointed and is required to carry out all the acts and deeds analogous to the receiver under Order 40 Rule 1 of the Code of Civil Procedure, for each misappropriation or transaction of the parties for the suit separate applications are not required to be made before the Court to grant directions. The Plaintiffs must approach the private receiver and the private receiver must carry out his functions and duties. Of course, it can be understood that during the pendency of this Notice of Motion in respect of the subject-matter of this Notice of Motion, the private receiver may not have acted. 14.Since this application is already taken out and has remained pending for about 4 years and since it is clearly seen that the aforesaid two amounts of USD 8 66,000/- and 6,400/- have been appropriated by Defendant No.1 since 7.7.2004 and 1.10.2004, and the withdrawals have not been disputed by way of an Affidavit-in-reply, Defendant No.1 is directed to deposit the Rupee equivalent of these amounts with the Prothonotary and Senior Master of this Court to the credit of this suit within 4 weeks from today. 15.However, the Plaintiffs shall not be entitled to withdraw the said amount pending the Suit. 16.It is hoped that the Private Receiver shall, henceforth, act upon the complaint of the parties in case of damage to the suit properties or any act of waste made by any of the parties brought to his notice. 17. The Notice of Motion stands disposed of accordingly. (SMT.ROSHAN DALVI, J.)