1 chs579-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.579 OF 2011 IN SUIT NO.353 OF 2009 Bastion Constructions .. Plaintiff versus Mr.Nusli N. Wadia & Ors .. Defendants And The Court Receiver, High Court,Bombay .. Respondent Mr.Sharan Jagtiani a/w Swanand Ganoo i/by Mahimtura & Co for the plaintiff. Ms.Snehal Shah with Ms.Deepti Panda & Ms.Falguni Thakkar i/by Doijode & Associates for defendant Nos.1,2 and 3. Mr.Ketan Trivedi, 1st Assistant to Court Receiver, present. CORAM : S.C.DHARMADHIKARI, J. 23rd November 2011. P.C.: . Heard Mr.Jagtiani appearing for the plaintiff, Mr.Shah appearing for the defendants and 1st Assistant to Court Receiver, who is present pursuant to notice. 2} Having perused the chamber summons and affidavits on record, I am of the opinion that the condition in the Agency Agreement with 2 chs579-11.doc regard to insuring property which is an open land, is not capable of being complied with in peculiar facts of this case. It would be proper, therefore, for the Receiver not to insist on property being insured by the plaintiff who is agent appointed by the Court Receiver. The condition to that fact need not be, therefore, complied with. 3} The argument is that there is another condition of the Agency Agreement and that in addition to giving an undertaking that the Court Receiver's possession will not be allowed to be interfered with and the property will be safe-guarded and protected at any costs, the Court Receiver insists that the plaintiff should undertake that no encroachment or act of that nature would be allowed or permitted by the plaintiff. The argument is that such insistence is at the instance of the defendants. The apprehension is that the same would be then utilised so as to oust the plaintiff from agency. In other words, when the property is being safe-guarded and despite diligent and proper efforts, on account of some acts of miscreants if an encroachment takes place, the plaintiff should not be outsted by using phraseology of this undertaking. 4} To my mind, in the peculiar facts of this case, the insistence that 3 chs579-11.doc the plaintiff must not only safe-guard and protect the property by not allowing anybody to enter or remain upon it so also they be prevented from parting with possession, that they give an undertaking that they will not allow anybody to encroach on the property or portions or parts thereof, cannot be said to be a unreasonsable or arbitrary condition or expectation. The apprehension that if any acts by miscreants or any unauthorised persons result in or amount to encroachment on the land, that would mean ouster of the plaintiff straightaway, is not well founded because even if such acts are brought to the notice of the Court Receiver he has to proceed and obtain directions by submitting appropriate and complete reports. Therefore, on this apprehension, the portions as sought to be deleted, cannot be deleted. 5} With the above clarification and limited deletion, the chamber summons is disposed off. (S.C.DHARMADHIKARI, J)