1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COURT RECEIVER’S REPORT NO. 1O OF 2009 WITH CHAMBER SUMMONS NO. 237 OF 2008 WITH NOTICE OF MOTION NO. 2933 OF 2008 IN SUIT NO. 1240 OF 1989 Domnic Francis Pereira. ... Plaintiff. V/s. Joseph Paul Pereira & Ors. ... Defendants. And Court Receiver, High Court, Bombay. ... Respondent. Mr. S.U. Kamdar a/w. V.A. Almeida i/b. Bhandary & Bhandary for the Plaintiff. Mr. Denzil D’mello for Defendant 2. Mr. Birendra Saraf a/w. Ms. S.T. Shaikh i/b. S.K. Srivastav & Co. for Defendant No.3. Mr. R.J. Singh i/b. Legal Liaisons for Defendant No.4. Mr. Brijesh Upadhyay i/b. Purnanand & Co. for Defendant No.7. Mr. G.G. Ketkar, 1st Asstt. to Court Receiver, Respondent in CHS. CORAM : S.C. DHARMADHIKARI,J. DATED : 03RD AUGUST 2009. P.C. :- This is a Suit which is filed by the Plaintiff Domnic Francis Pereira. There is a report made by the Receiver on 9th January 2009 in the above Suit, seeking several directions. 2. I have heard Mr. Kamdar, learned Senior Counsel for the Plaintiff and Mr. D’mello, learned Counsel appearing for 2 Defendant No.2, Mr. Saraf, for Defendant No.3, I have also heard the Counsel appearing for Defendant Nos.4 and 7. I am informed that the First Defendant has expired. Further, Defendant No.5 has also expired so also Defendant No.6. The surviving Defendants and the Plaintiffs are stated to be in possession of the flats in Franklin Apartments and details of which are set out in the report itself. 3. There is another property known as “Surf” Building. This property was initially in occupation of M/s. Tata Power Limited. It is stated that now the said Tata Power has vacated the premises. There are 6 flats, 6 store rooms, 6 garages and basement in this “Surf” building. 4. Both sides have accused each other of having created rights or inducting third parties in the immovable property of which the Court Receiver has been appointed. 5. After considerable arguments, both sides agree that the the Court Receiver can put his board on Franklin building as well as Surf building. 6. The allegation on behalf of Defendant No.3 is that the Plaintiff only has a life interest in the property, that he has dealt with same by entering into an agreement with the Developer/Building and that this is a contempt of the order passed by this Court. When the property was in possession of the Court Receiver, no agreements could have been executed 3 and therefore, the transaction itself has been questioned before me. These are not the proceedings in which I can issue any declaration in favour of Defendant No.3 with regard to this agreement/transaction. Suffice it to state that the Court Receiver shall file appropriate proceedings bringing to the notice of this Court all transactions, whether entered into by Defendant No.3 or by the Plaintiff. Needless to state that if other Defendants to this litigation have inducted any third party or executed agreement in their favour even they can also be proceeded with by the Court Receiver. Let all appropriate declarations then be issued if the Court decides to proceed for contempt of this Court’s order. All pleas in that behalf are kept open. 7. It is stated that Flat No.11 is in possession of the Plaintiff and Flat No.13 was in possession of Defendant No.5, who was sister of the Plaintiff. She having expired, Mr. Kamdar, learned Sr. Counsel appearing for the Plaintiff states that the flat in her occupation and possession (Flat No.13) is locked and now is in possession of the Plaintiff. The Plaintiff has not inducted anybody in the said premises. At this stage, Mr. Saraf invites my attention to a letter addressed by M/s. Jet Airways to one Tanveer Ahmed, who is stated to be in possession of Flat No. 11 and Mr. Saraf complains that the Plaintiff has inducted the said Tanveer although the property is in possession of the Court Receiver and the Plaintiff is mere agent of the Receiver. Mr. Kamdar, after taking instructions states that the flat is very much in possession of the Plaintiff and the said Tanveer 4 has no right, title and interest therein. Mr. Tanveer was merely a friend of the Plaintiff and the Plaintiff has not permitted him to print his name on any documents much less issue visiting cards showing the name and address of the building. Let the Court Receiver verify who is in physical possession of Flat Nos. 11 and 13 and if it is the Plaintiff, who is so, then, the Plaintiff shall be appointed as an Agent of the Court Receiver on such terms as the Court Receiver may deem just fit and proper but subject to the right of the Court Receiver to seek appropriate orders for contempt of Court and other declarations, against the Plaintiff. The Plaintiff to clear and pay off all arrears with regard to payment of rents and out-goings and the Court Receiver to execute the agency agreement only if the Plaintiff pays off the amounts as are due and payable. 8. It is stated that Defendant No.2 is in possession of Flat No.21. He shall continue as an agent of the Court Receiver. The complaint is that he is in Australia. Similarly, the complaint about the Plaintiff is that he has migrated to Canada. The complaint is that the Plaintiff is really not conducting the litigation and it is one Allwyn Saldanha, who is the Constituted Attorney of the Plaintiff but also associated with the developer/builder with whom the Plaintiff has entered into the agreement in question, who is really in charge of the litigation. Be that as if it may, Defendant No.2 must continue as an Agent but subject to payment of all such charges and expenses with regard to the property as are claimed by the 5 Court Receiver including any arrears. 9. Defendant Nos.3 and 4 are Agents of the Court Receiver with regard to Flat nos. 31 and 33. Defendant No.4 is not in any arrears, according to Defendant No.4’s Advocate. Let the Court Receiver verify from the record as to how much amount is due and payable by both Defendant Nos.3 and 4 with regard to Flat Nos.31 and 33 and he shall appoint them as Agent subject to the payment of arrears so also monthly charges regularly. The Court Receiver to execute the Agency Agreement with Defendant No.3 subject to and without prejudice to the Court Receiver’s right to proceed against him in contempt and claim appropriate declaration otherwise regarding transaction, if any, entered into by Defendant No.3. Both Plaintiff and Defendant No.3 shall furnish details including submission of original documents pertaining to their transactions with third parties. 10. As far as “Surf” building is concerned, it is stated that one Arjun Khanna is in possession of the basement. Mr. Saraf clarifies that there is one shop of which he is in possession and not the entire basement. Be that as if it may, Mr. Saraf states on instructions that Defendant No.3 shall ensure that Arjun Khanna vacates the premises in his possession within a period of six weeks from today. Statement made by Mr. Saraf is accepted as an undertaking by Defendant No.3 to this Court. Further, it is stated by Mr. Saraf that Defendant No.3 is in possession of store room. There are 6 store rooms in the 6 “Surf” Building. The Court Receiver shall take into custody all documents, papers and related records with regard to Surf Building, if not already taken possession off and after ensuring that all documents are submitted to him, find out at site as to who is in physical possession of these store rooms and seek appropriate directions with regard to appointment of either Defendant Nos. 3 or 4 as Agents on such terms and conditions as the Court may deem fit and proper. The 6 flats and 6 garages shall continue to be in possession of the Court Receiver and he must proceed to invite bids from third party for being appointed as Agents of the Receiver on such terms as he may deem just fit and proper but subject to further directions of the Court. 11. It is stated that the arrears are not being cleared and paid diligently by parties. In these proceedings what I have noticed is that even the Court Receiver has been lenient to parties. They have acted casually. Even the Court Receiver has not taken steps despite serious lapses on their part. It is the duty of the Court Receiver to administer and manage the property for the benefit of the parties to the litigation. Ultimately, he should not forget that he is a Officer of this Court. It is the parties who are making allegations against each other. However, what I find is that to reply affidavits on record are annexed documents stated to be signed by parties to the litigation purporting to create rights in the immovable property of which the Receiver is appointed. The rights, if any, in favour of third party could not have been created, 7 when, Receiver is appointed. Even the Receiver has failed to take action till date against them. The Court Receiver is directed to hereafter ensure that the suit properties be safeguarded and protected and any lapse on their part would be dealt with seriously. The Court Receiver must initiate proceedings against all erring parties within a period of four weeks from today. 12. Receiver’s Report dated 9th January 2009 is disposed of in the above terms with no costs. 13. Chamber Summons No. 237 of 2008 stands disposed off accordingly. 14. Notice of Motion No.2933 of 2008 to stand over for four weeks. (S.C. DHARMADHIKARI,J.)