1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.379 OF 2007 IN SUIT NO.921 OF 2005 Sardar Griha Co-operative Housing Society Ltd. ..Plaintiffs V/s Roopam Fashions Pvt. Ltd. & ors ..Defendants And Court Receiver, High Court, Bombay ..Respondent And M/s.Industrial Security Consultants Pvt. Ltd. ..Applicant WITH NOTICE OF MOTION NO.4211 OF 2006 IN SUIT NO.921 OF 2005 Sardar Griha Co-operative Housing Society Ltd. ..Plaintiffs V/s Roopam Fashions Pvt. Ltd. & ors ..Defendants And Court Receiver, High Court, Bombay ..Respondent Mr.Vipin Kamdi a/w.Mr.S.B.Pawar i/b.S.K.Legal Associates, Advocate, for the plaintiffs Mr.Simil Purohit with Mr.Harish Doshi & Mr.Pranesh Shah i/b.M/s.Vimadalal & Co., Advocate, for the defendant Nos.1 to 4 Mr.A.J.Rizvi, Advocate, for applicant in Chamber Summons Mrs.R.S.Gulekar – Section Officer – Court Receiver CORAM : R.M.SAVANT, J. 2 DATE : 15TH DECEMBER, 2008 P.C. . The above Chamber Summons has been filed by a third party which is a Security Agency which was appointed by the plaintiffs prior to the suit being filed and the Court Receiver being appointed. The applicant in the Chamber Summons seeks the relief that the Court Receiver be directed to pay the applicant's charges for providing Security Personnel from 1st July, 2005 to 31st December, 2006 amounting to Rs.6,65,100/- with interest @ 18% per annum amounting to Rs.1,15,574.46/-. In the alternative, the applicant prays for being impleaded as party defendant to the suit and be joined as the defendant No.7 to the suit. 2. The above Notice of Motion has been filed by the plaintiffs inter-alia seeking the same relief that the Court Receiver should be directed to pay the Security Charges, only the amount varies from the amount mentioned by the applicant in the Chamber Summons. The plaintiffs in the Notice of Motion have also prayed for some other reliefs namely the Court Receiver should be directed to pay Sweepers 3 Charges amounting to Rs.45,000/-, rent of the Society's Office premises and miscellaneous expenses incurred by the plaintiffs. The learned counsel for the plaintiffs fairly conceded that prayer clauses (e) & (g) of the Notice of Motion have become infructuous as action has already been taken by the Court Receiver in that behalf. Therefore, the issue in the above two proceedings i.e.the Chamber Summons and the Notice of Motion is as regards the payment of the charges for the Security Personnel provided by the applicant in the Chamber Summons. 3. In the above suit, the Court Receiver came to be appointed by Order dated 6th July, 2005, passed by a learned Single Judge of this Court. The reasons why the Court Receiver was appointed are reflected in paragraph 8 of the said order where the learned Judge was of the view that the building known as Sardar Griha which has both historical and heritage value is required to be protected. The Court Receiver upon his appointment, it seems took possession of the property in question on 28th September, 2005. 4 4. It appears that prior to the Court Receiver being appointed there was a security arrangement which was deployed both by the plaintiffs and the defendants to the said suit. The said separate arrangement can be seen from the Court Receiver's Report dated 13th September, 2006 and 12th October, 2006. In paragraph seven of the Court Receiver's Report dated 13th September, 2006, it has been recorded in paragraph 7 thereof that the Security Guards have already been appointed by the Society prior to the appointment of the Court Receiver. It has been further recorded that the advocate for the defendants, who had appeared before the Court Receiver had taken a strong objection for payments being made to the Security Guards, Sweepers and Office Clerks salary from the suit account. In paragraph 11 it has been recorded that as both the parties i.e.the plaintiffs and the defendants are not at consensus for continuing the present arrangement, the Court Receiver to seek suitable directions from this Court for deployment of the security personnel either from an independent body or board or parties concerned. To the said Report dated 13th September, 2006, is annexed a Report dated 29th August, 2006 wherein on page No.2 of the said Report it has been 5 recorded that till appointment of the new personnel on the suit property is done, the existing arrangement will be continued. The next Report of the Court Receiver is dated 12th October, 2006, which has been filed pursuant to the meeting held by the Court Receiver wherein it has been recorded that the present arrangement is that the plaintiffs were paying from the erstwhile account of the plaintiffs' Society and the defendants used to pay Security Charges from their account. To the said Report is annexed the Report dated 27th September, 2006, wherein on internal page No.2 of the Report it has been recorded that “Further the defendants informed that at present there are 6 security guards and 3 sweepers and one lift man i.e.3 Security guards are appointed by the plaintiffs and 3 are by the defendants. As regards the 3 sweepers and out of those 2 sweepers are appointed by the plaintiffs and one is by the defendants. As regards the lift man, the lift man is a common lift man. On the statement made by the defendants the representative of the plaintiffs stated that the said lift man is not common lift man but the said lift man was appointed by the defendants.” 6 The above Reports of the Court Receiver filed pursuant to the meetings held by him therefore disclose that prior to the Court Receiver's appointment there was security arrangement deployed by the defendants and the plaintiffs respectively and that each of them was paying independently out of its own account. 5. In so far as the Chamber Summons is concerned, the correspondence annexed to the said Chamber Summons makes an interesting reading in the context of the reliefs claimed by the applicant. The applicant by a letter dated 28th April, 2006, addressed to the plaintiff called upon the plaintiff to make payment of Rs.3,54,156/- for the period August, 2005 till April, 2006. In paragraph three of the said letter, it can be seen that the plaintiffs had assured the applicant/Security Agency that it would make payment irrespective of the Court matter saying that it is the entire responsibility of the plaintiffs to make the said payment since the deployment of the Security Personnels has been done at their commitment. The next letter is the letter dated 5th May, 2006, addressed to the erstwhile advocate of the plaintiffs wherein the 7 applicant/Security Agency has stated that they have a contract with the plaintiffs' society under which they are providing security services to them and they have nothing to do with the Court Receiver. The letter further goes on to state that the plaintiff assured the applicant that they will take care of payment of its bill. It has been lastly mentioned in the said letter that they have nothing to do with the dispute in question probably referring to the above suit and that they would not be contacting the Court Receiver for payment. The said correspondence therefore, also discloses that the applicant was holding the plaintiffs responsible for the payment of its dues. The entire tenor of the correspondence between the applicant and the plaintiffs appears to be so. However, thereafter the applicant has changed course and has now filed the instant Chamber Summons for claiming the said amount from the Court Receiver as also for being impleaded in the suit. After the Court Receiver was appointed by Order dated 6th July, 2005, the Court Receiver had submitted a Report dated 13th September, 2006 which had come up before a learned Single Judge of this Court on 15th September, 2006, wherein the learned Judge after recording the claim of the plaintiffs and the 8 defendants having appointed their respective Security Agency has recorded that the parties have agreed that an independent licenced security agency would be appointed to assess the extent of the man power required for ensuring due security arrangement of the building in question. The above Chamber Summons No.379 of 2007 had come up before another learned Single Judge of this Court on 11th April, 2007, wherein the learned Judge recorded that the services of the security agency were required to be terminated by the plaintiffs. However, the learned Judge further recorded that the question of paying any outgoing to the applicant/Agency does not arise. In any case such issues can be considered at the hearing of the Chamber Summons. 6. As indicated above, the claim of the applicant in the Chamber Summons and the plaintiffs in the above Notice of Motion is that the Security Agency which was deployed prior to the Court Receiver being appointed should be paid out of the suit account by the Court Receiver for the period July, 2005 to 1st December, 2006. The suit account is the account into which all the proceeds from the 9 building are deposited after the appointment of the Court Receiver. The question is whether the applicant should be paid out of the suit account. The Court Receiver's Reports reference to which has been made earlier in this Order and the correspondence entered into by the applicant with the plaintiffs make it abundantly clear that there was an existing arrangement of the plaintiffs and defendants appointing their own security agency and who were paid out of their own funds. There is no document on record to show that the applicant/Agency has been continued or a letter of continuation has been given by the Court Receiver after his appointment on 6th July, 2005. In fact, the Reports of the Court Receiver indicate that the Court Receiver had absolutely no control over the Security Agency appointed by the plaintiffs, as the independent agency which the Court Receiver had to appoint could be done only after the plaintiffs terminated the services of the applicant/Security Agency from 1st December, 2006. In my view, therefore, the Court Receiver cannot be made to pay for an agency over which he had no control and which he had not appointed and which had continued from the past being appointed by the plaintiffs prior to the appointment of the Court Receiver. The plaintiffs it 10 appears have about more than 130 members out of the total occupants, who are about 200 of the said building. Obviously, therefore, the plaintiffs wanted to continue the said Security Agency. It is also pertinent to note that the plaintiffs have also paid for the security agency and the Sweepers after the appointment of the Court Receiver. The said payments in so far as the Security is concerned, are for the period July, 2005 to December, 2005 for which two cheques of Rs.51,458/- and Rs.38,032/- have been issued by the plaintiffs. In so far as the Sweeper and water pump man's, payments have been made for the period July, 2005 to March, 2006 and July, 2005 to October, 2005 respectively. The plaintiffs therefore, taking into consideration the fact that it is they, who had appointed the Security Agency and other personnel have made payments and therefore, now cannot contend that the Court Receiver should make payment from the suit account. In my view, therefore, the relief sought by the applicant and the plaintiffs in so far as the payments to the applicant/Security Agency is concerned, cannot be granted. 11 7. On the same analogy the payments sought by the plaintiffs in the Notice of Motion as regards the Sweeper cannot be granted as it is the plaintiffs, who were responsible for the same. In so far as the rent of the Office premises of the Society and Miscellaneous Expenses incurred by the plaintiffs' Society are concerned, one fails to understand as to how the payment of Rent and Miscellaneous Expenses can be foisted on the Court Receiver. The rent is payable for the Office by the Society and Miscellaneous Expenses are being incurred by the Society and therefore, the Court Receiver cannot be made liable for the same. 12 8. In so far as the relief of impleadment sought by the applicant is concerned, looking to the nature of the dispute between the plaintiffs and the defendants, the applicant has no locus standi. The dispute between the plaintiffs and the defendants is regarding ownership of the property and conveyance from the Municipal Corporation. The applicant is, therefore, neither a proper or necessary party for adjudication of the said dispute. The said relief sought by the applicant of impleadment is, therefore, rejected. 9. In that view of the matter, both the Chamber Summons and the Notice of Motion stand rejected. (R.M.SAVANT, J.)