:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.699 OF 2006 OF MOTION NO.699 OF 2006 OF MOTION NO.699 OF 2006 IN IN IN SUIT SUIT SUIT NO.652 OF 2006 NO.652 OF 2006 NO.652 OF 2006 Pruthvinath Fulchand Gupta & Ors. .. .. ..Plaintiffs V/s State of Maharashtra ..Defendant Mr.S.D. Thokade for the Plaintiffs Mr.Milind More for the Defendant CORAM ; A.A.SAYED, J. DATE : 25TH FEBRUARY, 2009 P.C. 1. This motion is taken out by the plaintiffs against the defendant-State of Maharashtra, Crime Branch CID, Mumbai Police, Mumbai, essentially for the relief reproduced hereunder:- (a) Pending the hearing and final disposal of the suit for a mandatory, interim and ad interim Order of this Hon’ble Court directing the Defendant to remove the seal from the said shop premises described in Exhibit ’A’ to the Plaint and not to obstruct the Plaintiffs from possessing, occupying, using or enjoying the suit premises. 2. At the ad-interim stage by orders dated 25th September, 2006 and 12th December, 2006, this Court :2: had appointed Court Receiver in respect of the shop premises which is the subject matter of the suit. It was further directed that the parties who have offered best terms and conditions to be appointed as agent of the Court Receiver and occupy the shop premises after removal of seal thereof. The plaintiffs were also granted liberty to participate and seek appointment as an agent of the Court Receiver. I am informed that in pursuance of that order, the plaintiff No.4 Rashila S. Kothari has been appointed as an agent of the Court Receiver and she has given a Bank Guarantee in a sum of Rs.1,00,000/- and is paying a sum of Rs.2,000/- per month as royalty to the Court Receiver. 3. The facts of the case are that the plaintiff Nos.1 and 2 were allotted land by the Collector and they constructed the shop premises thereon admeasuring 175 sq.feet wherein the business of M/s Mahalaxmi Cloth Stores was being carried out since 1982. By an agreement dated 8th July, 2002, plaintiff Nos. 1 and 2 sold the shop premises and the said business to the plaintiff No.3, who in turn sold the shop premises to the plaintiff No.4 under an :3: agreement dated 01-11-2002. The said agreements however are not registered. The plaint avers that in view of the above agreements the plaintiff No.4 is absolutely seized and entitled to the shop premises. The plaintiff Nos. 1 to 3 have joined in filing the present suit at the request of the plaintiff No.4. It appears that the suit premises was given for conducting the business of "Mahalaxmi Cloth Stores" to one Maheshkumar Kothari @ Lodha under an agreement dated 1st November, 2002 between the plaintiff No.4 and the said Maheshkumar Kothari. The said conducting agreement was for a period of 11 months and was to expire on 30th September, 2003 and the monthly royalty amount was fixed at Rs. 10,000/- per month. 4. It appears that said Maheshkumar Lodha committed certain offences under section 406 and 420 of Indian Penal Code and C.R.No.32/2003 came to be registered against him for the offences committed by him during the course of conducting business from the shop premises. The said Maheshkumar Kothari however was absconding after offences were registered against him. Pursuant to the investigation carried out by :4: the officers of the defendant, the shop premises were searched and inventory thereof was taken of the articles lying in the shop premises and the shop premises came to be sealed by the defendant. 5. The husband of the plaintiff No.4 thereafter applied to the concerned Magistrate for removal of the seal. Significantly, in the police report produced before the learned Magistrate, it is mentioned that the police did not have any objection for the plaintiff No.4 to occupy the suit premises on appropriate terms and conditions. It is obvious that that this stand was taken by the police only after making complete investigation in the matter including perusal of the documents of the plaintiffs as well as making inquiries from the neighbours etc. The learned Magistrate however, rejected the application for the plaintiff No.4 by observing that the remedy to the petitioner was to approach the competent Civil Court. Aggrieved by the said order Criminal Revision was filed, which also came to be dismissed and the matter was carried to this Court by filing a Criminal Writ Petition, which also came to be rejected by this Court. :5: 6. In these circumstances, the plaintiffs have filed the above suit in this Court on the ground that they are the owners of the shop premises and since the act of the defendant in sealing the suit premises was wrongful and illegal, they are entitled to occupy the shop premises by removing the seal by the defendant. The above notice of motion has been taken out in the suit and pursuant to the ad-interim orders dated 25th September, 2006 and 12th December, 2006 as mentioned in para 2 above, the respondent No.4 is now in occupation of the shop premises as an agent of the Court Receiver. 7. The defendant-State has filed reply resisting the notice of motion wherein they have stated that the accused Maheshkumar Kothari @ Lodha had cheated about 32 people and has swindled around Rs. 25,50,859/- in cash and gold and a case was registered against him on 17-04-2003 under FIR 70/2003 in Antop Hill Police Station under section 406 and 420 of Indian Penal Code. The said C.R. was transferred to the General Branch as C.R.No.32/2003 being an offence of a economic nature. It is stated :6: in the affidavit that the accused Maheshkumar Kothari was in possession of the shop premises and that he was absconding since 20.11.2002 and the shop premises was sealed by the defendant-State under panchanama. It is stated that the said suit premises is in slum area under the Deputy Collector, ENC Dharavi Division, Naik Nagar, Sion Koliwada, Mumbai belt and the said authority had received a census form No. 1112608 from the accused Maheshkumar Kothari and his wife Anita annexing therewith a Ration Card copy issued on 18-08-1999. It is further averred in the reply that the documents are not stamped or registered and do not confer any title and that documents cannot be termed as documents of title and therefore the plaintiffs are not owners of the shop premises. A rejoinder has been filed to the said reply by the plaintiff No.4, wherein it is stated that she had applied for assessment extract in respect of the shop premises to the Assistant Assessor and Collector, Assessment and Collection Department, F/N Ward Bhudaji Road,Matunga (East) Mumbai and accordingly the said authority supplied a copy of the assessment extract to her and in the said assessment extract the names of the plaintiff Nos. 1 :7: and 2 are shown as occupants of the shop premises and the 1st date of assessment is shown as 1-04-1982. The plaintiffs reiterated that they should be handed over the suit premises as the conducting agreement had come to an end in 2003 and as they are the owners of the shop premises. 8. The Ld.Counsel for the Plaintiff submitted that the Plaintiff No. 4 is the owner of the shop premises and that the other Plaintiffs who were the original owners, are also supporting her case. He submitted that though as of today the Plaintiff No.4 is occupying the shop premises in pursuance of the ad-interim orders of this Court, she has had great difficulty in managing the Bank Guarantee of Rs. 1,00,000/- and she was having greater difficulty in paying the royalty of Rs. 2,000/- pm to the Court Receiver in respect of her own premises. The Ld. Counsel submitted that it would be unfair and unjust to make the Plaintiff No. 4 pay the said amount, particularly when there were no other claimants to the shop premises and in view of the fact that the conducting agreement between the Plaintiff No.4 and the accused Maheshkumar Kothari came to an end and :8: the natural consequences thereof would be that the shop premises would have to revert to the Plaintiff No. 4 and none else. He therefore submitted that the Plaintiff No.4 be allowed to continue to occupy the shop premises without any payment and the Court Receiver be discharged and the amount already paid be refunded to the plaintiff No.4. 9. The Ld. AGP on the other hand, opposed the notice of motion. Adverting to the order dated 27-04-2004 passed by this Court in Criminal Writ Petition No.1181 of 2004, he submitted that there was a controversy insofar as the documents of title of plaintiff No. 4 is concerned and therefore this Court did not interfere with the orders passed by the Ld.Magistrate and Ld. Additional Sessions Judge and therefore no relief can be granted to the Plaintiffs even in the above motion. 10. I have heard the Ld.Counsel for the Plaintiffs and the Ld. AGP and perused the material on record. At the outset it is required to be noted that in the police report dated 30-07-2003 filed before the Ld. Additional Chief Metropolitan Magistrate,19th Court, :9: it was stated that that during their investigation, it was revealed that the Plaintiff No.1, Pruthvinath Gupta was the original owner of the shop premises and the accused Maheshkumar Kothari was working as a servant in the shop of the Plaintiff No.1. Thereafter the said accused Maheshkumar Kothari was conducting the shop premises viz: "Mahalaxmi Cloth Stores" on behalf of the Plaintiff No.1 and was paying the Plaintiff No. 1 a sum of Rs.2,500/- pm. The shop premises changed hands and then came to the hands of one Kailash Ganna (the Plaintiff No.3 herein) who also gave the shop for conducting to the accused Maheshkumar Kothari and ultimately the Plaintiff No.4’s husband bought the shop premises and he also gave the shop premises to the said accused Maheshkumar Kothari on conducting basis. In the last para of the above said police report, it is stated as follows: "Hence, there is no objection to return the said shop to the applicant on suitable terms and conditions". (emphasis supplied) 11. The documents annexed to the plaint disclose that the Assessment bill of the Municipal Corporation and the Shops and Establishment Registration :10: Certificate stand in the name of the Plaintiff No.1 and 2. The said Plaintiff Nos.1 and 2 are supporting the case of the plaintiff No.4 and the fact that they have sold the shop premises to plaintiff No.3 who in turn has sold it to the plaintiff No.4 is asserted in the plaint. It cannot be disputed that as of today, there are no claimants to the shop premises and the conducting agreement between the Plaintiff No.4 and the accused Maheshkumar Kothari has also come to an end as far back as on 30-09-2003. Insofar as the documents of title are concerned, though the agreements do indicate that the shop premises was sold by the Plaintiff No.1 and 2 to the Plaintiff No.3, who in turn sold the shop premises to the Plaintiff No. 4; however the said documents are neither stamped nor registered and the same are a matter of debate and will ultimately have to be tested at the time of trial. 12. Taking an overall view of the matter, in my opinion the following order would meet the ends of justice: 1. The ad-interim order appointing Court :11: Receiver is confirmed subject to the modification that the Plaintiff No.4 will be allowed to continue to occupy the shop premises without payment of any royalty. The amounts paid so far including the the monthly royalty shall, after deducting the taxes and outgoings, be invested by the Court Receiver to his satisfaction in a term deposit of any nationalized bank. 2. The Bank Guarantee of Rs. 1,00,000/- given by the plaintiff No. 4 shall be kept alive by her till the disposal of the suit. In addition to the Undertaking dated 17th March 2007, the Plaintiff No.4 shall file further undertakings and shall execute necessary writings, indemnities etc., as may be required by the Court Receiver. The Court Receiver shall be entitled to make provisions for his cost, charges and expenses to the tune of Rs. 7,500/- for the present. 3. The pendency of this suit shall not preclude the Plaintiff No.4 or the government :12: from regularizing title of the Plaintiff No. 4 to the shop premises, if it is so permissible under the law. 4. This order shall be subject to the rights, if any, of the accused Maheshkumar Kothari @ Lodha or the Government in respect of any action of wrongful transfer etc. of the shop premises. 13. The notice of motion to stand disposed of without costs. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)