1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.561 OF 2009 IN COURT RECEIVER’S REPORT NO.30 OF 2009 IN SUIT NO.948 OF 1985 WITH NOTICE OF MOTION NO.4195 OF 2009 IN APPEAL NO.561 OF 2009 IN COURT RECEIVER’S REPORT NO.30 OF 2009 IN SUIT NO.948 OF 1985 Tabore Trading Co., and Anr. .... Appellants V/s. Court Receiver, High Court, Bombay and Ors. ..... Respondents WITH APPEAL NO.562 OF 2009 IN COURT RECEIVER’S REPORT NO.30 OF 2009 IN SUIT NO.948 OF 1985 WITH NOTICE OF MOTION NO.4194 OF 2009 IN APPEAL NO.562 OF 2009 IN COURT RECEIVER’S REPORT NO.30 OF 2009 IN SUIT NO.948 OF 1985 2 Salima A. Sooman and Anr. ..... Appellants V/s. Court Receiver, High Court, Bombay and Ors. ..... Respondents Mr.P.K.Dhakhephalkar, Sr.Advocate, a/w Mr.Yadunath Choudhari i/by Smt.Reena Salunke, for the appellants. Mr.Madhav Jamdar, for the respondent No.9. Mr.S.K.Sonawane-Patil, for the Respondent – BMC. Mr.K.L.Vyas, Court Receiver, High Court, Bombay, present. None for respondent Nos.3 and 4. CORAM :P.B.MAJMUDAR, & R.V.MORE, JJ. DATE : DECEMBER 18, 2009 P.C. 1. Since common point is involved in both these appeals, they are taken up for final disposal with the consent of the learned counsel appearing in the matter. By way of these appeals, the appellants challenged the order passed by the learned Single Judge dated 12-02-2009 below Court Receiver’s Report No.30 of 2009. By the impugned order, the learned Single Judge has found that the Court Receiver was appointed in 1985. The suit premises is a tenanted premises and the tenants are paying rent to the Court Receiver. It was found that certain tenants have defaulted payment of rent. The learned Single Judge permitted the Court Receiver to take possession from those defaulting tenants. 3 Regarding flat Nos.8 and 9, it was found that a third party is seen to be in possession after the appointment of Court Receiver. The learned Single Judge found that there is a transfer when the property was custodia legis. Under these circumstances, the learned Single Judge directed the Court Receiver to take physical possession of Flat Nos.8 and 9 from the occupants. The aforesaid appeals have been filed at the instance of alleged occupants of Flat Nos.8 and 9. 2. The learned Senior Counsel for the appellants vehemently submitted that no notice worth the name was given to the occupants before dispossession. According to learned counsel for the appellant, one of the occupants is a tenant of the premises i.e. Tabore Trading Co. He submitted that the occupant was occupying the premises in a lawful manner and it cannot be said that the occupant is a third party in any manner. He submitted that if opportunity of hearing was given, the appellant could have satisfied the learned Single Judge in this behalf. The learned counsel for the appellant further submitted that it is not in dispute that Smt.Salima Sooman, appellant in Appeal No.562 of 2009 was a tenant of the premises and it cannot be said that she was a third party. The learned counsel for the appellants vehemently submitted that under these circumstances, the appellants are required to be put into possession as they have been dispossessed by the Court Receiver on 20-02-2009, 4 without giving any sort of hearing at all. 3. Per contra, the learned counsel for the respondent No.9, submitted that said statement is not correct. According to him, Smt.Salima had already left the premises and she has let out the premises to the third party after the Court Receiver was appointed i.e. Mr.Pradeep P. Goragandhi, appellant in Appeal No.561 of 2009. He further submitted that M/s.Tabore Trading Co., a proprietary concern, was a tenant, but thereafter, had left the premises by putting lock on it and therefore, it is obvious that the occupant of the premises subsequently took the possession after the appointment of the Court Receiver. 4. At the time of hearing of these appeals, it is submitted by both the sides that the matter can be remanded back to the learned Single Judge with a view to see that the appellants can put forward their say before the learned Single Judge and after hearing both the sides, the learned Single Judge may be requested to pass fresh orders. Since there is a consensus prevailing between both the learned Advocates in this behalf, it is not necessary to give detailed reasons in the present appeals. The learned counsel for the appellants after taking instructions from his clients, states that after hearing the appellant, if the learned Single Judge comes to the conclusion that the appellant is a third party having obtained possession after the appointment of the Court Receiver, his clients 5 undertakes to vacate the premises on the basis of such finding, subject to his right to challenge the such order in appeal in accordance with law. 5. Considering the aforesaid aspect of the matter, the impugned orders of the learned Single Judge are hereby set aside and the matter is remanded back to the learned Single Judge to decide the Court Receiver’s Report afresh. The learned Single Judge may give opportunity to the concerned appellants/alleged occupants to submit their say in connection with the dispossession. It will be open to the respondent No. 9 to file affidavit-in-reply before the learned Single Judge to point out the nature of occupation of the occupants, as it is the say of the learned counsel for respondent No.9 that Mr.Goragandhi obtained the possession after the appointment of the Court Receiver and that is how he is a third party. It is clarified that we have not expressed any opinion on the merits of the issue and it is for the learned Single Judge to decide the Court Receiver’s report on its own merits in accordance with law. However, we make it clear that in case if it is found that the appellant Mr.Goragandhi has entered the possession after the appointment of the Court Receiver and he is a third party, the appellant should hand over the possession to the Court Receiver, in view of such order. The statement of the learned counsel for the appellants in this regard, in the form of oral undertaking is accepted. The present is passed with a view to see that a person who is 6 sought to be dispossessed can put his say before the learned Single Judge by filing reply to the Court Receiver’s Report. The learned counsel for the appellants submitted that the concerned appellants will file their affidavit- in-reply to the Court Receiver’s Report within a period of three weeks from today. Thereafter, it will be open to the respondent NO.9 to file reply within two weeks thereafter. The learned Single Judge may thereafter, try to dispose of the Court Receiver’s Report within a period of two months from today. 6. In view of this, the Court Receiver may hand over the possession to Mr.Goragandhi, with a clear understanding that the latter shall hand over possession in case the learned Single Judge so directs in this behalf, at the time when the Court Receiver’s Report is disposed of. It is also clarified that we have not expressed any opinion on the merits of the issue in any manner and the contentions of both the sides are kept open. The Court Receiver states that moment Mr.Goragandhi approaches him for obtaining keys, he will handover the keys to him. Mr.Goragandhi is directed not to create any third party interest and not to transfer the disputed property in any manner. It is clarified that the occupation of Mr.Goragandhi is for limited period till the learned Single Judge passes the order on Court Receiver’s Report and merely because possession is given to Mr.Goragandhi, it should not mean that there is a prima facie case in his 7 favour. 7. In view of what is stated above, the appeals are disposed of. 8. In view of the disposal of the appeals, notice of motion Nos. 4195 and 4194 of 2009 do not survive and they are disposed of accordingly. ( R.V.MORE, J. ) ( P.B.MAJMUDAR, J.)