pvr １ appl516-515 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODG)NO.516 OF 2011 IN NOTICE OF MOTION NO.3669 OF 2010 IN SUIT NO.1471 OF 1996 AND APPEAL (LODG)NO.515 OF 2011 IN NOTICE OF MOTION NO.1695 OF 2011 IN SUIT NO.1471 OF 1996 Mr.Lal J.Budhrani ...Appellant vs. 1.Mrs.Rekha J.Budhrani & ors. ...Respondents --- Mr.Rajeev Kumar, Sr.Advocate i/b. Kunal Bhanage, for Appellant. Mr.Gaurav Joshi @ Mr.A.T.Suryavanshi i/b. M/s.Makrand Gandhi & co., for Respondent nos.2 to 3. --- CORAM: D.K.DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 20th October,2011. pvr ２ appl516-515 P.C.:- 1. Not on board. By consent of parties the appeals are taken up for hearing. 2. Admit. Heard finally by consent of parties. By these appeals, the original defendant no.5 challenges the order passed by the learned Single Judge of this Court dated 17.6.2011 in Notice of Motion no.3669 of 2010 and Notice of Motion no.1695 of 2011. Notice of motion no.3669 of 2010 was taken out by defendant no.5 asking for the following relief:- (a) That pending the hearing and final disposal of the suit, the Hon ble Court be pleased to direct the Court Receiver, High Court, Bombay to hand over vacant possession of the suit premises viz. Office No.501, 5th floor, Dalamal House, Nariman Point, Mumbai-400021 to Defendant no.5. pvr ３ appl516-515 Notice of motion no.1695 of 2011 was taken out by defendant nos.2 and 3 claiming the following reliefs:- (a) That pending the hearing and final disposal of the suit, this Hon ble Court be pleased to direct the Court Receiver, High Court, Bombay to hand over vacant possession of the office premises viz. Office No.501 situated at 5th floor, Dalamal House, Nariman Point, Mumbai-400021 to Defendant nos.2 & 3. Thus, by these two notices of motion, defendant nos. 2 and 3 were asking for direction to the Court Receiver to hand over possession of Office No.501, 5th floor, Dalamal House, Nariman Point, Mumbai-400021, and the defendant no.5 was asking for the same reliefs in relation to the same premises. The learned Single Judge by order dated 17.6.2011 has directed the Court Receiver to hand over possession of that property to pvr ４ appl516-515 defendant nos.2 and 3. The defendant no.5 has filed Appeal (Lodg) No.516 of 2011 and Appeal (Lodg.) no.515 of 2011 challenging that order. The relevant facts are that on that property admittedly the Court Receiver was appointed by the order of the learned Single Judge of this Court. That order is dated 29.9.1999. The Court Receiver, it appears, took possession of the property on 27.12.1999. What is recorded in paragraphs 2 and 3 of the report submitted by the Court Receiver is relevant, which read as under:- On reaching the above address at about 1.30 p.m., Miss.Shweeta Sabnis, the Advocate instructed by Mr.Dilip Jhangiani, the Advocate for the Plaintiffs and Mrs.Priya Budhrani, the wife of defendant no.5 showed and pointed out to me the said suit office premises No.1 which was found locked. I then showed them the above Court s Order and explained them the purpose of my visit to the suit premises and requested Mrs.Priya Budhrani, the pvr ５ appl516-515 wife of Defendant no.5 to hand over me on your behalf the possession of the said suit premises as per the aforesaid Court s Order. On knowing the purpose of my visit, Mrs.Priya Budhrani, the wife of Defendant no.5 after going through the aforesaid Court s Order agreed and ready to hand over me the possession of the said suit office premises No.1 and opened the said suit office premises with the Keys lying with her and we found that the said suit premises was in vacant condition. It is, thus, clear from the report of the Court Receiver that the wife of defendant no.5 handed over keys of the property to the Court Receiver as the property was found locked. It appears that thereafter there was an order for sale of the property while the property was in the hands of the Court Receiver, but the property could not be sold. Ultimately, the matter went before the Division Bench of this Court in Appeal i.e. pvr ６ appl516-515 Appeal no.317 of 2006. In that appeal, the Division Bench of this Court has passed order dated 24.7.2009 and by that order the Division Bench discharged the Court Receiver and directed the Court Receiver to hand over possession of the property to the party from which the Court Receiver has taken possession. What is observed by the Division Bench in paragraph 3 of that order dated 24.7.2009 is relevant, which reads as under:- 3.In the peculiar facts and circumstances of the case, it may not be just and proper to continue the Court Receiver as receiver of the subject property. Therefore, we discharge the Court Receiver as the parties are not co-operating subject to Receiver s cost, charges and expenses. The Court Receiver is directed to hand over possession to the party from whom the Court Receiver had taken possession. (emphasis supplied) pvr ７ appl516-515 It appears that the Court Receiver submitted his report before the Court which was Court Receiver s Report no.146 of 2010. The Court Receiver, it appears, noted in that report that none of the parties have come forward to take possession of the premises from the Court Receiver. That report was placed before the learned Single Judge on 19.10.2010. The learned Single Judge noted that as per the Receiver, none of the parties approached him for taking over possession. The Court directed that as and when the parties approaches the Court Receiver, the Court Receiver may submit appropriate report. It is, thereafter, it appears that the aforesaid two notices of motion viz. Notice of Motion No.3669 of 2010 and Notice of Motion no.1695 of 2011 were taken out by defendant nos.2 and 3 and defendant no.5 for handing over possession of the premises. Both those notices of motion have been disposed of by the learned Single Judge by directing the Receiver to hand over possession to defendant pvr ８ appl516-515 nos. 2 and 3. Therefore, the question that is to be decided in these appeals is whether the learned Single Judge, in the facts and circumstances of the case, specially in view of the order of the Division Bench and the report of the Court Receiver to which we have referred to above, could have made that order? 2. We have heard the learned Counsel appearing for both the sides. The learned Single Judge in paragraph 5 of the order impugned in the appeals observed that The Report of the Court Receiver dated 27th December,1999 shows that the wife of Defendant no.5 handed over the key of the suit flat to the Court Receiver. The learned Single Judge, thereafter, observed that since defendant no.5 is stated to have jointly purchased the property with defendant nos.1, 2 & 3, it must be assumed that defendant no. 5 s wife had handed over possession to the Court Receiver on behalf of defendant no.5 and defendant nos.1 pvr ９ appl516-515 to 3. If it is the case of defendant no.5 that he jointly purchased the property with defendant nos.1, 2 and 3, it cannot be inferred that his possession is also joint. The assumption on the basis on which the learned Single Judge has proceeded is, thus, not possible. 3. So far as the observations of the learned Single Judge that the case of defendant no.5 is of joint possession with defendant nos. 1, 2 and 3 is concerned, when we asked the learned Counsel appearing for defendant nos. 2 and 3 to show us from the record as to from which statement made by defendant no.5, it can be said that it is his case that he is jointly in possession of the property with defendant nos.1, 2 and 3, the learned Counsel could not show us any case put up by defendant no.5 of joint possession. Thus, the order of the learned Single Judge is based on impossible assumption and statement which is non existent on record. We also find that the order pvr １０ appl516-515 of the learned Single Judge is in terms contrary to the order of the Division Bench. The Division Bench by its order dated 24.7.2009 in categorical term directed the Court Receiver to hand over possession to the party from whom the Court Receiver has taken possession. The Report of the Court Receiver which we have quoted above, in clear terms states that the possession was handed over to the Court Receiver by the wife of defendant no.5. Therefore, unless the report of the Court Receiver is set aside or the order of the Division Bench directing the Receiver to hand over possession to the party from whom the possession has taken, is modified, it was not open to the learned Single Judge to direct handing over of possession to anybody else than defendant no.5. In paragraph 11 of the order the learned Single Judge observed that defendant no.5 has not made any offer of payment pending the suit and the defendant no.5 has not offered to pay off and discharge the liability of the pvr １１ appl516-515 parties to the society. In our opinion, these considerations are not relevant in the face of the order of the Division Bench. The order of the Division Bench does not give an option or liberty to the learned Single Judge to make an order which is contrary to the order of the Division Bench. In this view of the matter therefore, in our opinion, the order of the learned Single Judge directing the Court Receiver to hand over possession of the property to defendant nos.2 and 3 will have to be set aside. 4. In the result, therefore, the appeal succeeds and is allowed. Order dated 17.6.2011 passed in Notice of Motion no.3669 of 2010 and Notice of Motion no.1695 of 2011 is set aside. Notice of Motion no.3669 of 2010 is granted in terms of prayer clause (a) and Notice of Motion no.1695 of 2011 is dismissed. 5. The defendant nos. 2 and 3 knowing fully pvr １２ appl516-515 well the order of the Division Bench have taken out the notice of motion, without applying for modification of order of the Division Bench, for handing over of possession to defendant nos. 2 and 3. The defendant nos.2 and 3, therefore, are directed to pay cost of appeal to the Appellants in Appeal (Lodg) no.515 of 2011. 6. At this stage, a request is made on behalf of defendant nos.2 and 3 to stay the operation of this order. In our opinion, as the order of the learned Single Judge is contrary to the order of the Division Bench, that order cannot be permitted to remain in force. In our opinion, in order to give the defendant nos.2 and 3 an opportunity to challenge this order, the following interim order would meet the ends of justice:- The Receiver shall forthwith take possession of the property from defendant nos.2 and 3 and hand over the property in possession of pvr １３ appl516-515 defendant no.5. However, defendant no.5 after the property is handed over to him shall maintain status quo for a period of four weeks from the date on which the possession of the property is handed over to defendant no.5. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)