1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1371 OF 2009 IN SUIT NO. 5086 OF 1998 J.K. Karwa ...Plaintiff Vs. Mr. Basant Bhoruka ...Defendant And Federal Bank Ltd. ...Applicant And Badriprasad Bhouruka Family Trust. ...Intervener. ----- Mr. K.P. Sreeji a/w.Mr. Durgesh Singh i/b. Sreeji & Co. for Plaintiff Mr. Nitin Thakkar, Senior Counsel a/w. Ms. Subhalakshmi i/b. Mr. O.A. Das for Applicant Mr.Sapana Rachure i/b. M/s.T.N. Tripathi and Co. for Intervener Mr.A.A. Kumbhakone a/w. Ms.Swati Sawant i/b. Mr.V.M. Thorat for Defendant ----- CORAM: V.M. KANADE J. DATED: 10TH MARCH, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant, the learned Counsel for the Defendants and the learned Counsel for the Intervener. 2 2. This Chamber Summons is taken out by the Applicant, who has secured a decree against the Defendant herein in the DRT in OA No. 2926 of 2000. The said decree was passed on 5.12.2003. The DRT after it was informed that the Court Receiver was appointed by this Court, directed the Applicant to obtain leave of this Court and consequently, the Applicant has filed this Chamber Summons, seeking the following reliefs. "(a)that the Hon'ble Court Receiver, High Court, Bombay, may be discharged from the suit property; (b)that this Hon'ble Court be pleased to grant the leave to the Applicant to proceed with the execution being Recovery Proceeding No. 180 No. 2004 of the Debts Recovery Tribunal for issuing Warrant of Attachment and Sale of the Flat viz. Flat No.11-A & B, situated at Sudhakar Building, 11th Floor, Narayan Dabholkar Road, Malbar Hill, Mumbai- 400 006, and to recover the sale proceeds towards decretal amount; 3 (c)that pending the hearing and final disposal of this of this Chamber Summons, the Plaintiff and the Defendant may be restrained by an order and injunction of this Hon'ble Court from selling, alienating, dealing, parting with and creating third party rights in the suit flat; viz. Flat No. 11-A and 11-B, situated at Sudhakar Building, 11th Floor, Narayan Dabholkar Road, Malbar Hill, Mumbai - 400 006 or any part thereof; (d) for ad-interim reliefs in terms of prayer clause (c) hereinabove; (e) for such other reliefs as the nature and circumstances of the case may require be granted in favour of the Applicant. (f) cost of this Chamber Summons be provided." 3. The learned Senior Counsel appearing on behalf of the Applicant submitted that he is only seeking leave of this Court to proceed with the execution of the decree passed by the Debt Recovery Tribunal and further leave to add the Court Receiver as the party in the execution proceeding. He secondly submitted 4 that he does not press the prayer clause (a) and the the second part of prayer clause (b) viz. issuance of warrant of attachment and sale of the flat and recovery of the sale proceeds towards the decretal amount. He seeks liberty to press for these reliefs in the recovery proceedings. 4. Shri Thorat, the learned Senior Counsel for the Applicant submitted that since he is a decreeholder, he has filed this application for seeking leave. He submitted that since the Court Receiver has been appointed by this Court, it is the duty of the Applicant to seek leave of this Court for the purpose of proceeding with the execution of a decree. In support of the said application, he relied on the judgment of the Apex Court in the case of Everest Coal Company (P) Ltd. vs. State of Bihar and Others, reported in (1978)1 SCC page 12. 4. The learned Counsel appearing on behalf of the Defendant and the Intervener submitted that the prayer clause (a) and second part of the prayer clause (b) may not be granted, firstly, because the suit is pending and the flats are also the subject matter of the present suit. Secondly, it is submitted that they have purchased the suit property by conveyance and, therefore, the said suit flats cannot be sold. 5 5. In my view, since the learned Counsel of the Applicant is not pressing the prayer clause (a) and part of prayer clause (b), it is not necessary to go into the question of regarding ownership of the flat or regarding the other issues which are raised in this suit. Since the execution proceedings are still pending before the DRT, the Applicant, in my view, is not entitled to seek leave to proceed further with the execution. The Apex Court in paragraph 4 has observed as under: "4. The laconic afffirmance by the High Court of the trial Court's order has necessitated the appellant's challenge of its propriety and legality. Instead of leaving the matter 'astrologically' vague and futuristically fluid, we shall state the legal position and settle the proposition governing this and similar situations. When the Court puts a receiver in possession of property, the property comes under Courts custody, the receiver being merely an officer and agent of the Court. Any obstruction or interference with the Court's possession sounds in contempt of that Court. Any legal action in respect of that property is in a sense such an 6 interference and invites the contempt penalty of likely invalidation of the suit of other proceedings. But if either before starting the action or during its continuance, the party takes the leave of the Court, the sin is absolved and the proceeding may continue to a conclusion on the merits. In the ordinary course, no Court is so prestige-conscious that it will stand in the way of a legitimate legal proceeding for redressal or relief against its receiver unless the action is totally meritless, frivolous or vexatious or otherwise vitiated by any sinister factor. Grant of leave its the rule, refusal the exception. After all, the Court is not, in the usual run of cases, affected by a litigation which settles the rights of parties and the receiver represents neither party, being an officer of the Court. For the reason, ordinarily the Court accords permission to sue, or to continue. The jurisdiction to grant leave is undoubted and inherent, but not based on black- letter law in the sense of enacted law. Any litigative disturbance its authority; and the wages of contempt of Court in this jurisdiction may well be voidability of the whole proceeding. Equally clearly, prior permission 7 of the Court appointing the receiver is not a condition precedent to the enforcement of the cause of action. Not is it so grave a vice that later leave sought and got before the decree has been passed will not purge it. If, before the suit terminates, the relevant Court is moved and permission to sue or to prosecute further is granted, the requirement of law is fulfilled. Of course, failure to secure such leave till the end of the lis may prove fatal." In view of what is observed by the Apex Court, therefore, the Applicant is not precluded from seeking leave since the execution is still pending. The Applicant, therefore, in my view, has made out a case for grant of leave. All other questions raised by the Defendant and by the Intervener are kept open. The Applicant shall add the Court Receiver as the party. The Learned Counsel for the Applicant shall add the Court Receiver as the party in the execution proceeding. 6. Chamber Summons is, accordingly, disposed of. (V.M. KANADE J.)