1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 208 OF 2000 IN REVIEW PETITION NO. 8 OF 2000 IN NOTICE OF MOTION NO. 2191 OF 1994 IN NOTICE OF MOTION NO. 1529 OF 1995 IN NOTICE OF MOTION NO. 374 OF 1997 IN SUIT NO. 3387 OF 1994 WITH NOTICE OF MOTION NO. 2968 OF 2008 IN APPEAL NO. 208 OF 2000 IN REVIEW PETITION NO. 8 OF 2000 IN NOTICE OF MOTION NO. 374 OF 1997 IN NOTICE OF MOTION NO. 1529 OF 1995 IN NOTICE OF MOTION NO. 2191 OF 1994 IN SUIT NO. 3387 OF 1994 M/s. Shah Enterprises, A Partnership Firm ] having its office at Shree Kurpa, 55, Vitthal ] Nagar Co.Op. Housing Society Ltd. 1st floor] Road No.11, J.V.P.D. Scheme, ] Mumbai-400 049 ]..Appellant (Ori.Defendant No.1) Vs. 2 1. Prithvi Vallabh Bhalchandra Rawant ] 2. Sanjeev Kumar Bhalchandra Rawant] Both residing at “Vishwa Gulab ” ] 28, Dasara Maidan, Ujjain-456010 ] 3. A(i) Shakuntala Bhalchandra Rawat ] an adult, Indian Inhabitant, ] residing at Vishwa Gulab, 28 ] Dassera Maidan, Ujjain, ] Madhya Pradesh-456 010 ]..Respondents ---- WITH APPEAL NO. 281 OF 2008 IN NOTICE OF MOTION NO. 3938 OF 2005 AND NOTICE OF MOTION NO. 3817 OF 2006 IN SUIT NO. 3313 OF 2005 WITH NOTICE OF MOTION NO. 2371 OF 2008 IN APPEAL NO. 281 OF 2008 IN NOTICE OF MOTION NO. 3938 OF 2005 AND NOTICE OF MOTION NO. 3817 OF 2006 IN SUIT NO. 3313 OF 2005 Mrs. Falguni Dinesh Thakkar ] of Mumbai, an Indian Inhabitant ] residing at 6, Varsha, J.V.P.D. Road No.5, ] Navyug Society, J.V.P.D., Mumbai-56 ]..Appellant 3 Vs. 1. Bhavnesh Harish Gandhi ] 2. Samir Harish Gandhi ] both of Mumbai, an Indian Inhabitants] having their address at 4, ] Sonal, N.S.Road No.1, J.V.P.D. ] Scheme, Vile Parle (W) ] Mumbai-400 056 ] 3. Prithvi Vallabh Bhalchandra Rawat ] 4. Sanjivkumar Bhalchandra Rawat ] both of Mumbai, an Indian Inhabitant ] residing at “Vishwa Gulab ”, ] 28 Dassera Maidan, Ujjain ] 456 010 (Madhya Pradesh) ] 5A. Smt.Shakuntala Widow of ] Bhalchandra Rawat, ] Age 65 years, Occ: Housewife, ] of Mumbai, an Indian Inhabitant ] having her address ] at Vishwa Gulab, 28 Dassera ] Maidan, Ujjain (M.P.)456010 ] 6. M/s.Shah Enterprises, ] a Partnership firm, having its office ] at “Shree-Krupa ” 55 Vithal Nagar ] Co.Op.Housing Society Ltd. ] 1st Floor, Road No.11, Juhu ] Vile Parle Development Scheme ] Vile Parle (W), Mumbai-400 049 ] 7. Mr.Monji K.Shah ] 8. Mr.Jayantilal K.Shah ] both of Mumbai, ] an Indian Inhabitants, having their ] address at “Shree Krupa ” ] 55, Vithal Nagar Co.Op. Housing ] Society Ltd, 1st floor, Road No.11, ] Juhu Vile Parle Development ] Scheme, Vile Parle (W) Mumbai-49 ]..Respondents 4 .... Ms.P.D.Anklesaria Senior Counsel, along with Niranjan Lapashiya i/b Niranjan & Co. for Appellant in Appeal No.208 of 2000 and Respondent Nos.6 to 8 in Appeal No. 281 of 2008. Mr.P.N.Patwardhan along with K.H.Kanojia i/b Bharat Kumar & Co. for Respondent Nos.1 and 2 in Appeal No.208 of 2000 and Respondent No. 3 in Appeal No.281 of 2008. Ms.Rajni Iyer Senior Counsel along with Tushar Goradia for Appellant in Appeal No. 281 of 2008. Mr.Shekhar Shete along with Ms.Nasim Patrawala i/b Pravin Mehta and Mithi & Co. for Respondent Nos.1 and 2 in Appeal No.281 of 2008. .... CORAM : B.H.MARLAPALLE AND SMT.V.K.TAHILRAMANI, JJ. DATE : 19/20th JANUARY, 2010 ORAL JUDGMENT: [PER B.H.MARLAPALLE,J.] : 1. Appeal No. 208 of 2000 arises from the common order dated 29th January, 2000 passed in Notice of Motion No.2191 of 1994, 1529 of 1995 and 374 of 1997 in Suit No. 3387 of 1994. It appears that Review Petition No. 8 of 2000 was also filed before the learned trial Judge and the same was dismissed on 9th February, 2000. Whereas, Appeal No. 281 of 2008 arises from the order dated 17th June, 2008 passed in Notice of Motion No. 3938 of 2005 and Notice of Motion No. 3817 of 2006 in Suit No. 3313 of 2005. 2. The Plaintiffs and Defendant No.2 in Suit No. 3387 of 1994 were the 5 lease holders of the plot and more particularly described as Plot No. 65, CTS No.245 of village Vile Parle and part of Vallabhnagar Co- operative Housing Society, admeasuring 891.36 sq. mtrs. By an agreement dated 31st July, 1991, the Plaintiffs and Defendant No.2 had agreed for Defendant No.1 to put up a building on the said plot of land consisting of ground plus four floors as per the building plans sanctioned by the Bombay Municipal Corporation and there was a further provision for additional floors for using of the T.D.R. As per the Defendant No.1, the agreement provided initially for a multi storeyed building of Ground+8 floors. Whereas, as per the Plaintiffs, the Defendant No.1 had played a mischief and interpolated the agreement dated 31st July, 1991. They also claimed that Power of Attorney dated 22nd March, 1991 and the Indemnity Bond dated 22nd February, 1991 in favour of Defendant No.1 and given by the Plaintiffs and Defendant No.2 were also bogus and fabricated. Suit No.3387 of 1994 was filed for a declaration that all these three documents were false, bogus, interpolated and illegal. In the year 1997, the plaint was amended to challenge the inclusion of T.D.R. and it was contended that the incorporation of T.D.R. in the agreement dated 31st July, 1991 was by way of interpolation. In the said suit, Notice of Motion Nos. 2191 of 1994, 1521 of 1995 and 374 of 1997 were filed by the Plaintiffs for 6 identical or similar reliefs and the combine reading of these prayers, indicated that the reliefs claimed were as under: (a) An order of temporary injunction restraining the Defendant No.1 from continuing with further construction on the plot of land owned by the Plaintiffs and Defendant No.2; (b) An order of temporary injunction restraining the Defendants from creating any third party interest in the building that was under construction of Defendant No.1 on the suit plot; (c) An order of temporary injunction restraining the Defendants from sending copies of the some of the documents to the Handwriting Expert for examination and report; 3. These three Notices of Motion came to be decided by the impugned common order dated 29th January, 2000 and the operative part of the said order reads as under: “(i) The defendant no.1 shall supply to the plaintiffs a 7 list of the persons in whose favour third party interests have been created in the building constructed on the plot. The defendant no.1 shall inform those persons in whose favour third party interests have been created that the interest created in their favour is subject to the result of this suit, with a copy to the plaintiffs; (ii) The Court Receiver of this Court is appointed on the area admeasuring 2,000 sq. ft. on the first floor of the building as also terrace on the first floor of the building. The Court Receiver shall take possession of this property and shall place the plaintiffs in possession thereof as his agents, without payment of royalty and security, however, the plaintiffs would be liable to pay outgoings in relation to this property. It is further clarified that as and when the garage is constructed, the defendant no.1 shall give intimation to the Court Receiver about construction of the garage. On such intimation being received, the Court Receiver shall stand appointed on one of the garage and the Court Receiver shall hand over possession of the garage to the plaintiffs to be in possession as agents of the Courts, without payment of royalty and security. The Court 8 Receiver ’s charges shall be payable by the defendant no. 1. ” 4. While Appeal No. 208 of 2000 was pending before this Court, it appears that Defendant No.1 (Developer) proceeded to terminate the tenancy agreement dated 28th May, 1993 and supplementary agreement dated 30th June, 1993 signed in favour of Gandhis who have been subsequently added as Defendant Nos. 3 to 6 in Suit No. 3387 of 1994 and the said developer entered into a tenancy agreement with one Mrs. Falguni Thakkar and this gave rise to filing of Suit No. 3313 of 2005 by Gandhis for a declaration that the agreements signed in their favour continued to subsist and binding and the agreement signed in favour of Mrs.Thakkar be declared as illegal and void ab initio. In short, it was a suit for specific performance against the Builder based on the tenancy agreement. In the said suit, Notice of Motion No. 3817 of 2006 came to be filed praying for restraining orders/injunctions and appointment of a Court Receiver. The said Notice of Motion was allowed on 17th June, 2008. The operative part of the said order reads as under: “(i) Court Receiver is appointed Receiver in respect of 9 Flat No.801 on the 8th floor of Vishwagulab Building, at N.S.Road No.1, Juhu, J.V.P.D. Scheme, Mumbai-400056; (ii) The Plaintiffs are appointed Agents of the Court Receiver. The Plaintiffs shall have the right to use, occupy and possess the suit premises as such Agents without payment of Royalty, but upon payment of the rent, permitted increases, taxes as well as maintenance charges towards the Society as applicable and as paid by all other occupants of the other flats in the suit building; (iii) The Plaintiffs shall execute the Agency Agreement with the Court Receiver as required by him; (iv) The Plaintiffs shall hand over possession of the flat on the first floor in the suit building to the Court Receiver in Suit No. 3387 of 1994 simultaneously when the Plaintiffs are put in possession of flat No. 801 in this suit; (v) This order shall be subject to the orders passed in Suit No. 3387 of 1994; (vi) The Court Receiver shall hand over all the furniture in the suit flat no.801 to the Defendant No.7; (vii) This Suit as well as Suit No. 3387 of 1994 require to be tried together. Any party hereto may apply to the 10 Hon ’ble the Chief Justice for assignment of one Court for both the suits; (viii) This order is stayed for three weeks. ” 5. The order dated 17th June, 2008 is under challenge in Appeal No. 281 of 2008. 6. As the impugned orders are in respect of the same project i.e. the multi-storeyed building being put up by Defendant No.1 on the suit plot and the tenancy agreements signed by Defendant No.1 on behalf of Plaintiffs and Defendant No.2 viz. the tenants, it would be appropriate that these appeals are decided by a common Judgment and hence, we proceed to do so. 7. In Appeal No. 208 of 2000, the Appellant-Defendant No.1 has confined his challenge to the order dated 29th January, 2000 and not to the order dated 9th February, 2000 passed in Review Petition No. 8 of 2000. At the same time, the first part of the operative order dated 29th January, 2000 has not been challenged and the challenge is only to the limited extent of the appointment of the Court Receiver i.e. the second part of the order. 8. It was submitted by Ms. Anklesaria, the learned Senior Counsel appearing for the Appellant that when Suit No. 3387 of 1994 was 11 filed, the Plaintiffs had suppressed the subsequent Memorandum of Understanding dated 16th January, 1992 and the suppression of this document was deliberate. As per her, the three documents under challenge in the suit and the Memorandum of Understanding signed by the Plaintiffs and Defendant No.2 with Defendant No.1 through Shri. Monjibhai Shah would prima facie, show that the suit was not filed with bonafide intentions and by the time, the Notices of Motion came to be decided by the impugned order, the building was ready with eight floors. As per Ms. Anklesaria, the Plaintiffs and Defendant Nos. 2 and 3 were paid a hefty sum of Rs.1,40,00,000/- at the time or before the agreement dated 31st July, 1991 was signed and the Plaintiffs were to be inducted as tenants in Flat No.1 provided the said amount of Rs.1,40,00,000/- was returned to the Defendant No.1 or the suit plot was transferred in the name of Defendant No.1. It was further pointed out that on 31st August, 1994 an order came to be passed in Notice of Motion No.2191 of 1994 by the learned trial Judge and pursuant to the same, an affidavit was filed by Defendant No.1 in the suit on 14th September, 1994. It was pointed out that tenancy agreements in respect of 9 flats, were already signed and so far as the Gandhis were concerned, the tenancy agreement at the first instance was for flat no.4 on the 4th floor and in case the building would be 12 constructed beyond four floors, they would be shifted to the floor below the top floor. For example, if the building was constructed of ground plus nine floors, Gandhis would be handed over flat no. 8 in place of flat no.4. It was also pointed out that in the meanwhile, Gandhis were put in possession of flat no.1 by way of a temporary arrangement at their request in February, 1994. As per the Appellant, when the impugned order was passed on 29th January, 2000, Gandhis were already in occupation of flat no.1 and therefore, there was no need to appoint the Court Receiver for the said flat. By referring to the impugned order, it was pointed out that the learned trial Judge proceeded on the basis that the said flat was unoccupied which was factually not correct. 9. Mr. Patwardhan, the learned counsel for the Plaintiffs has taken a preliminary objection for the maintainability of this appeal and he submitted that unless the appeal memo was amended so as to confine the challenge in the appeal to the order dated 29th January, 2000 by deleting the challenge to the order dated 9th February, 2000 passed in the Review Petition, the appeal was required to be dismissed or returned to the Appellant by following the provisions analogous to Order XLI Rule 3 of the Civil Procedure Code. He also submitted that when the impugned order dated 29th January, 2000 13 was passed, it was the learned counsel for the Defendant No.1 who had stated before the Court that flat no.1 was meant for the Plaintiffs and was to be handed over to the Plaintiffs and on the basis of this statement made across the bar that the learned trial Judge proceeded to appoint Court Receiver and further directed to appoint the Plaintiffs as the agents of the Court Receiver for flat no.1. It was also submitted by Mr. Patwardhan that the Memorandum of Understanding dated 16th January, 1992 as well as the agreement dated 31st July, 1991 were prima facie interpolated documents and in this regard, he referred to the handwriting expert ’s report pursuant to the order passed by the learned Single Judge in Criminal Application No. 1222 of 2007 dated 19th June, 2007. He therefore, submitted that no interference is called for in the impugned order. He further submitted that the appellant was requested to file three appeals, against the common order impugned. 10.We have noted that as per order dated 23rd March, 2000 passed in this Appeal, the Court Receiver was allowed to take symbolic possession of flat no.1 without dispossessing anyone in possession and thus, the Plaintiffs could not be appointed as agents for the said flat pursuant to the impugned order, consequently the Gandhis continued to occupy the flat. 14 11.So far as the preliminary objection to the maintainability of the appeal is concerned, once the appellant has given up the challenge to the order passed in the Review Petition and restricted it only to the common order dated 29th January, 2000, it cannot be held that the appeal is not maintainable. The reliance on the Scheme of Order XL Rule 3 of the C.P.C. is misplaced. Even otherwise such a question was not raised by the Plaintiffs by taking out a motion to return the appeal or to dismiss it as not maintainable. While admitting the appeal, the issue of its maintainability was never raised and therefore it was not left open. The impugned order has decided three notices of motion and it is not a requirement in law to file three separate appeals, so as to decide the issue of maintainability of the appeal. 12.It was also pointed out by Ms. Anklesaria that in none of the Notices of Motion decided by the impugned common order, the Plaintiffs had prayed for the appointment of the Court Receiver. However, Order XL Rule 1 of C.P.C. states that where it appears to the Court just and convenient, the Court may by order, appoint a Receiver of any property whether before or after the decree. It is well settled that the Court on its own motion has the power to appoint the Court Receiver in the facts and circumstances of a given case. If the circumstances of a case justify that the suit property is required to be protected by 15 placing it under charge of the Court Receiver, the Court has the power to invoke the provisions of Order XL Rule 1 of C.P.C. suo motu and appoint the Court Receiver. The only questions, therefore, remain to be examined is whether the obtaining facts and circumstances justify the appointment of the Court Receiver in respect of flat no.1 and the appointment of the Plaintiffs as the agents of the Court Receiver for the said flat as has been directed by the impugned order. 13.In paragraph 6 of the impugned order, the trial Court held thus: “Now if in the light of these rival submissions, the record of the case is perused, it becomes clear that principal controversy between the parties is whether the Plaintiffs had entered into an agreement with Defendant No.1 for construction of a building consisting of ground plus eight floors, as also whether the agreement contemplated using of T.D.R., as also whether these stipulations have been inserted in the agreement by interpolation has been put up by the Plaintiffs by amending plaint in the year 1997. So far as the original plaint is concerned, there is no averment to be found that the stipulation or the above two aspects in the agreement are a result of interpolation. In fact, the Plaintiffs themselves have filed a copy of the agreement at 16 Annexure-C which contains a recital about the construction of a building consisting of ground plus eight floors and therefore, is also an endorsement in that agreement about using of T.D.R. There is no averment to be found in the plaint as it was originally filed, stating that these terms were not there when the agreement was reduced to writing. In my opinion, the Plaintiffs who are admittedly parties to the agreement, would have first pointed out this aspect to the Court and at first opportunity when they filed this suit, had it really been their case that these are interpolations. Failure of the Plaintiffs to make averment in this regard in the plaint, as it was originally filed, in my opinion, does not inspire confidence of the Court in the case put up by the Plaintiffs that these aspects have been inserted in the agreement by interpolation..... ” 14.However, the trial Court proceeded to appoint the Court Receiver and on the basis of the following observations made in paragraph 6: “..... it is also to be seen that as per the agreement, the Defendant No.1 had agreed to hand over certain constructed area to the Plaintiffs. True it is that there is 17 some controversy between the parties whether the area on 1st floor together with garage and terrace was to be given to the Plaintiffs alone or it was to be given to Defendant No.2. However, in my opinion, no useful purpose will be served by keeping that area unused..... ”. 15.Ms.Anklesaria was therefore, right in her submissions that the trial Court was pleased to appoint the Court Receiver on the presumption that flat no.1 was unused on the date the impugned order was passed. It appears that the Court ’s attention was not invited to the affidavit filed by Defendant No.1 on 14th September, 1994 in obedience of the order passed on 31st August, 1994 in Notice of Motion No. 2191 of 1994. In the said affidavit, it was clearly pointed out that flat no.1 was in possession of Gandhis as per their request on temporary basis, pending their shifting to flat no.8. It is also pertinent to note that Gandhis came to be impleaded as defendants only during the pendency of this appeal and hence, the order was passed behind their back. 16.There is one more aspect which also requires to be highlighted and that is regarding the receipt of 65,00,000/- by the Plaintiffs and Rs. 70,00,000/- by Defendant No.2. In the impugned order, the trial Court 18 has referred the receipt at Annexure-K to the plaint and has concluded, prima facie that the Plaintiffs had received an amount of Rs.65,00,000/- from the Defendant No.1 and from the said amount, an amount of Rs.5,00,000/- was returned to Defendant No.1. 17.Our attention was invited to the affidavit filed by Defendant No.2 in response to the reply filed by Shri. Monjibhai Shah on behalf of Defendant No.1 in Notice of Motion No. 374 of 1997. In the reply of Shri. Shah, it was stated inter alia, that right from 1988 onwards, he had paid a total sum of Rs.1,40,00,000/- to the Plaintiffs and Defendant No.2 and the said fact was acknowledged by both the parties. Out of the said sum of Rs.1,40,00,000/-, an amount of an Rs. 70,00,000/- was paid to the Plaintiffs and amount of Rs.70,00,000/- was paid to Defendant No.2. Out of the said amount, an amount of Rs.5,00,000/- each was paid to the Plaintiffs and Defendant No.2 by cheque and balance amount of Rs.65,00,000/- each was paid in cash. Defendant No.2 filed a common affidavit in all the three Notices of Motion on or about 5th March, 1999 and admitted that he had received an amount of Rs.70,00,000/- from Defendant No.1. Thus, the receipt of an amount of Rs.65,00,000/- by the Plaintiffs and an amount of Rs.70,00,000/- by Defendant No.2 from Defendant No.1 around the time the agreement dated 31st July, 1991 was signed, is 19 prima facie, established. 18.Clause B of the Memorandum of Understanding dated 16th January, 1992 reads as under: “In 1988, there were negotiations between the owners and tenant for the sale of property with all benefits present and future to the tenant for an agreed consideration. The owners were to get N.O.C. and other permissions from the society. The tenant started making payments to the owners and the owners executed Power of Attorney in favour of tenant in 1988. The owners confirm that till date, they have received Rs.1,30,00,000/- in cash and Rs. 10,00,000/- by cheques and acknowledged a receipt of Rs. 1,40,00,000/-. In July,1991, the owners found that the society was creating some problem in giving required N.O.C. and permission for transfer, so it is mutually agreed as follows: “ Since the owners have already received a sum of Rs. 1,40,00,000/- and as they are unable unable to refund the amount immediately, it is decided that the owners enjoy the fruit of the amount for some more time and the owners 20 would refund the said amount, at the end of two years from the date of this agreement but without any interest, to the tenant and in lieu of this, the owners allow the tenant to certain benefits as per contract agreement executed on 31st January, 1991. ” 19.The said Memorandum of Understanding ends with a receipt for Rs. 1,40,00,000/- and signed by three persons on behalf of the original plot holders i.e. Plaintiffs and