1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COURT RECEIVER’S REPORT NO.37 OF 2009 IN SUIT NO.2429 OF 1997 Naina Deepak Kamani .. Plaintiff Versus Sayed Sikander Moazam & Ors. .. Defendants Mr.Sheetal Kumar with Mr.M.M.Patel i/b. M.M.Patel & Co. for plaintiffs Mr.Chandnani i/b. Lexim Associates for defendant No.7 Mr.Pradeep Kadam for defendant Nos. 3 and 4 Mr.Sanjay Jain for Court Receiver, Mr.Vinod Gaonkar, P.S.I. Worli Police Station Mr.K.L.Vyas Court Receiver CORAM : S.C.DHARMADHIKARI, J. DATE : 11th February 2009. P.C. . This is a Court Receiver’s report. 2. The Receiver seeks following directions:- (a) Obstructionist and Police 2 Authorities be dealt as per law for causing obstruction in discharging official duties by the representatives of the office of Court Receiver to implement the order of this Hon’ble Court; (b) Date of appointment be fixed in presence of parties to avoid further delay in executing the order of this Hon’ble Court; (c) All parties, Advocates and authorities be directed to cooperate with the office of Court Receiver for implementing the order of this Hon’ble Court; (d) Directions be given to Director General of Police to give assistance to the representative of the Office of Court Receiver whenever they approach the 3 concern police station through out the State of Maharashtra on the basis of any orders passed to that effect by this Hon’ble Court or City Civil Court; (e) Any other reliefs as this Hon’ble Court deems fit, just and proper; (f) Costs of an incidental to this application and order to be made thereon is fixed at Rs.1000/- may come it from the funds of the Court Receiver as Receiver therein." It is not necessary to make a detailed reference to the facts as they are clear from the various orders which are referred to in the Receiver’s report and the affidavits that have been filed in reply to this report. 3. Suffice it to state that the Receiver is 4 appointed as Receiver in respect of the flat more particularly situated at and described as under:- "Ram Niwas, Ground Floor, Sir Pochkhanwala Marg, Worli, Mumbai 400 025" 4. The Court Receiver, by the initial order and even by subsequent orders was directed to appoint Defendant No.7 as his Agent on payment of royalty. That royalty was determined but the defendant No.7 is in arrears. The consequences of execution of Agency Agreement stipulating payment of royalty periodically are that in case of default, the Agent of Court Receiver can be removed. 5. Precisely, this is that direction that is being sought. Repeatedly the Court Receiver is prevented from implementing the orders of this Court and performing his duty in law, is the grievance in this report. 5 6. On 5th July 2007 in another Court Receiver’s report an order was passed by this Court. This Court has referred to all earlier orders and has held that the Court Receiver is bound to execute the orders and even the learned Single Judge is so bound. The earlier Receiver’s report was made absolute in terms of prayer clause 19(a) and (b). The Court Receiver, thereafter, made attempts to take possession as is clear from the present report and my attention is invited by Mr.Jain, appearing for Court Receiver to para 9(a) of the present Receiver’s Report. The said para reads as under:- "9(a) On 4th December 2007 the representative of this Court Receiver went on the spot but in entire process and by lapse of time the police authorities assured to cooperate and give police assistance on next date as such 6 the appointment was continued on next date i.e. 5th December, 2007. ". On 5th December 2007 when the representative of the Court Receiver visited the suit site along with police authorities one Mr.Ganesh Kanojia, son of Mr.Lakhan Kanojia, defendant No.7 forcibly man-handled Mr.Sachin Keluskar, representative of the Court Receiver and pushed him from the said flat in the present of police authorities and in the said circumstances there was Law and Order situation arose but Police did not take action against the said Mr.Ganesh Kanojia. The police authorities on that occasion also told that they will not physically remove the said persons who are found in the suit flat. The police authorities further stated that they will only protect the representative of the 7 Court Receiver, if physically man-handled. In view of the aforesaid situation the representative of the Court Receiver could not implement the Court’s order dated 5th July 2007." 7. When this report was placed before me on the earlier occasion Mr.Chandnani who was representing defendant No.7 in the suit sought to appear on behalf of one Pushpa Tanajirao Kadambande, plaintiff in R.A.E. St.No.1767 of 2000. He states that this lady is claiming tenancy rights in the suit premises. Having approached the Small Causes Court for protecting her rights and possession so also being armed with the order of the Appellate Bench of Small Causes Court granting interlocutory reliefs. It is submitted that the Court Receiver cannot take any action which would prejudice her case in the pending proceedings. Mr.Chandnani has taken me through the orders which are annexed to the 8 affidavits of this lady viz., Pushpa Kadambande. 8. He submits that these orders are clear inasmuch as the Court Receiver is a party to the proceedings before the Small Causes Court and the Appellate Bench of Small Causes Court having restrained all respondents to the appeal/ defendants to the suit from disposing of and/or taking peaceful and physical possession of the premises from the plaintiff, Pushpa Kadambande, this report should not be entertained and granted or else this Court would be passing an order defeating the rights of the said Pushpa Kadambande in the suit premises. 9. Learned Counsel appearing for plaintiff on the other hand invited my attention to the order passed on 7th February 2000 wherein, learned Single Judge of this Court (D.K.Deshmukh, J) while deciding the Notice of Motion No.2438 of 1997 has dealt with self-same contentions. It is 9 stated by the learned Counsel that this lady Pushpa Kadambande is none other but a person put up by defendant No.7 soas to defeat the orders of this Court. She has already filed an affidavit which is referred to by Justice Deshmukh. She has stated in this affidavit that she is not in physical possession of the premises and has left Mumbai for Indore. Reliance is placed upon the findings of the learned Judge (D.K.Deshmukh, J) in para 5 of his order dated 7th February 2000. 10. Reliance is also placed upon an order passed by this Court in Notice of Motion No.1628 of 2007, wherein another learned Single Judge of this Court (Smt.Ranjana Desai, J) dealt with an application made by the very same Pushpa Kadambande. Reliance is placed on specific observations of the learned Single Judge in paras 7 to 10 of the said order. 11. I have heard both sides and perused the 10 report of the Court Receiver so also the orders relied upon. 12. The learned Single Judge of this Court in her order dated 4th October 2007/26th October 2007 has observed in paras 12 and 13 as under:- "12. In my opinion, the present notice of motion must be rejected only on the ground that admittedly notice of motion making almost identical prayers and on same grounds of fraud and fabrication of documents taken out by defendant No.7 being Notice of Motion No.696 of 2007 was rejected by Justice A.M.Khanwilkar on 28/3/2007. The case of the applicant is that defendant No.7 is like her son. She claims to be a tenant of the said flat along with defendant No.7. Affinity of applicant and defendant No.7 is also clear from the fact that the same 11 advocate is representing both of them. The main prayer in that motion was that the suit be dismissed because the applicant who is a necessary party is not made a party. In the affidavit in support, defendant No.7 had, inter alia, alleged that order dated 7/2/2000 passed by Justice Deshmukh appointing Court Receiver and order dated 3/7/2000 passed by the Division Bench are obtained by the plaintiff/ director of defendant No.1 by practicing fraud on the Court. On 28/3/2007, Notice of Motion No.696 of 2007 was disposed of by Justice A.M.Khanwilkar by passing the following order:- ...... ". Therefore, the allegation of fraud was rejected by this Court. This 12 Court observed that if any further application is moved at the instance of defendant No.7, it may consider imposing exemplary costs." "13. Defendant No.7 carried an appeal before the Division bench of this Court. By a speaking order dated 18/4/2007, the Division Bench rejected the said appeal. I may quote the relevant observations of the Division Bench. ..... 13. Para 15 of Her Ladyship’s order makes it clear that the applicant i.e. Pushpa Kadambande before her and defendant No.7 to the present suit are represented by the same Advocate. Pushpa treats defendant No.7 as her son. Pushpa and defendant No.7 claim to be the tenants of the flat. However, because defendant No.7 could not 13 get the relief in his favour, the applicant Pushpa preferred the notice of motion which was dealt with by Her Ladyship. This is an admitted fact. She has dealt with the allegations of fraud and has rejected them by assigning reasons. It is clear from Her Ladyship’s order that the applicant has not been able to substantiate all allegations including her claim of tenancy. The learned Judge was inclined to saddle her with costs but warning her about her conduct, Her Ladyship refrained from doing so. Thus, her motion was rejected. The prayer for staying the order was also rejected. Receiver’s report points out that an appeal was preferred against this order being Appeal Lod.No.893 of 2007. The appeal came up before the Division Bench of this Court, when the applicant/ appellant Pushpa Kadambande was directed to deposit a sum of Rs.7.5 lakhs within one week by an order dated 6th December 2007 by the Division Bench. The sum is not deposited and her appeal is dismissed on 14 18th June 2008 by a Division Bench of this Court (See Exh.H to the affidavit of D.S.Chandnani) Another appeal which was preferred being Appeal Lod.No.795 of 2007, has also been dismissed as withdrawn. All these orders are passed after the order of the Appellate Bench of the Court of Small Causes dated 28th August 2002 in Appeal No.46 of 2001. 14. The Receiver points out that similar attempts were made by defendant No.7 and his Notices of motions have been dismissed so also the appeal therefrom as narrated in paras 14 to 16 of his report. Thus, the orders of this Court have become final. They are binding on the Receiver and he must enforce them. He has to take possession of the premises and abide by further directions of the Court. 15. It is in these circumstances that the Court Receiver prays that all obstructions to 15 taking possession put up by the said Pushpa and defendant No.7 be removed. Police assistance be given to him soas to carry out and implement orders of this Court. 16. In A.I.R. 1977 S.C. 2302 (Everest Coal Company Pvt.Ltd. Vs. State of Bihar & Ors), dealing with the status and position of the Court Receiver, the Supreme Court has observed thus:- "4. ... When a Court puts a receiver in possession of property the property comes under Court custody, the receiver being merely an officer or 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 interference and invites the contempt penalty of likely invalidation of the suit or other proceedings. But, 16 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 merits." .... Any litigative disturbance of the Court’s possession without its permission amounts to contempt of its authority; and the wages of contempt of court in this jurisdiction may well be viodability of the whole proceeding." 17. Thus, there is no substance in the contentions of Mr.Chandnani. This is a Receiver’s report for directions. Mr.Chandnani desires to contest it as if it is another round of proceedings in the suit. Same pleas are reiterated. They have been already considered and rejected. There is no declaration of Tenancy granted by any court till date. Hence, the law 17 laid down in Anthony Leo Vs. Nandlal Bal Krishan reported in A.I.R. 1997 S.C. 173 will not apply. In any event, I cannot reopen the controversy already concluded by orders of this Court. They bind everybody. Considering that the Court Receiver is appointed to preserve and protect the subject matter of litigation and his possession is for and on behalf of parties to the litigant, all concerned have to render assistance to the Court Receiver. Ultimately, he is an officer of the Court and the property is custodia legis. No interference with the exercise of powers that are conferred upon a Court Receiver by the Court appointing him can be thus tolerated. Ultimately, the orders are passed by the Court for protecting and preserving the subject matter of litigation and such orders have to be implemented or else the litigant public is likely to lose its faith and trust in the Administration of Justice. When orders of the Court have been passed, all concerned including 18 police authorities must render their assistance to implement them. They have to make available the necessary resources and assistance including for using such force as is permissible in law to implement the orders of the Court. It need not, therefore, be emphasised that the grievance made by the Receiver against the police machinery in this case shows a serious lapse on the part of concerned police station. Since the police officer is present in court and has assured that hereafter no complaints would be received with regard to the lack of assistance by the police that I refrain from passing any orders and take any action. 18. This is the last time that the Court will tolerate such a laxity on the part of the police machinery. Equally, if parties to the litigation are responsible for not cooperating with the Receiver or resisting and obstructing him, then, even they will have to be dealt with strongly. 19 This is a last opportunity granted to the applicant Pushpa and defendant No.7 to comply with the orders of this Court. If they do not cooperate and hand over possession, then, it is permissible for the police to use such force as is necessary and remove them from the premises so that the Court Receiver can take possession thereof. 19. The Court Receiver’s report is thus made absolute in terms of prayer clause (b). It is directed that all parties shall remain present at the site on 16th February 2009 at 4.30 p.m. and hand over peaceful and vacant possession of the premises to the Receiver. Needless to state that the reference to term "parties" would include, the applicant Pushpa Kadambande. Further it is needless to add that if either defendant No.7 or Pushpa Kadambande or anybody else at site resists or obstructs the Court Receiver in any manner in taking possession, they shall be removed from the 20 site/ premises by the police. Court Receiver shall be rendered all assistance for carrying out this order by the concerned police station. 20. Court Receiver and the concerned police station to submit their report of compliance within ten days. Court Receiver’s report is disposed of accordingly. (S.C.Dharmadhikari, J) 21 # IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COURT RECEIVER’S REPORT NO.37 OF 2009 IN SUIT NO.2429 OF 1997 Naina Deepak Kamani .. Plaintiff Versus Sayed Sikander Moazam & Ors. .. Defendants Mr.Sheetal Kumar with Mr.M.M.Patel i/b. M.M.Patel & Co. for plaintiffs Mr.Chandnani i/b. Lexim Associates for defendant No.7 Mr.Pradeep Kadam for defendant Nos. 3 and 4 Mr.Sanjay Jain for Court Receiver, Mr.Vinod Gaonkar, P.S.I. Worli Police Station Mr.K.L.Vyas Court Receiver CORAM : S.C.DHARMADHIKARI, J. DATE : 12th February 2009. P.C. . After this order was dictated in Court yesterday i.e.11th February 2009 and was pronounced at 5.00 p.m., in the presence of 22 parties, directions were given to Court Receiver to take possession. However, the matter was mentioned today once again and an affidavit of Mrs.Pushpa Kadambande is filed wherein, she purports to undertake to this Court that she would hand over vacant and peaceful possession by 15th March 2009 subject to her rights. 2. Mr.Chandnani prays that this Affidavit cum-Undertaking be taken on record and my order passed yesterday be stayed till 15th March 2009. 3. The request is opposed by the learned Counsel appearing for plaintiffs and she invites my attention to the strictures and remarks passed in the orders of this Court against defendant No.7 and Mrs.Pushpa Kadambande. 4. Having considered these remarks and strictures and the manner in which the Receiver has been obstructed from taking possession in the 23 peculiar facts of this case, I do not see any reason to stay my order. More so, when neither defendant No.7 nor Mrs.Pushpa Kadambande is ready and willing to deposit any sums and comply with the terms and conditions of the Agency Agreement. Accordingly, stay is refused. ( S.C.Dharmadhikari, J)