1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Court Receiver's Report No.245 of 2008 In Arbitration Suit No.154 of 1991 Afzal A.S. Oomerbhoy & anr. .. .. Plaintiffs v/s. Majid A. Oomerbhoy & ors. .. .. Defendants Ms.Archana patil i/by Jurist for Plaintiffs. Ms.Manjiri Shah i/by Thakore Jariwala & Asso. For Deft.No.1. Mr.D.V. Deokar, 1st Asst. to Court Receiver, present. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 4th September, 2008 P.C. : 1.The Court Receiver has applied for being discharged in the above Suit without passing accounts and subject to the payment of costs, charges and expenses. The Court Receiver has applied for directions as to whether possession of the suit premises is to be handed over in Arbitration Suit No.154 of 1991. 2.It is the contention of the Plaintiffs that the Court Receiver was already discharged by an order passed by Justice Jhunjhunuwala on 2.12.1992 on Court Receiver's Report dated 9.11.1992 in this Suit as also in Suit No.3424 of 1991. 2 It is the case of Defendant No.1 that though the Court Receiver was discharged on 2.12.1992 in Suit No.3424 of 1991, the Court Receiver was not discharged in this Suit and if the Plaintiffs desire that the Court Receiver to be discharged they must apply for discharge of the Court Receiver at present and the Court Receiver may be discharged by an order of this Court passed now. 3.It is for the Plaintiffs to show that the Court Receiver stood discharged under the said order. It is the Plaintiffs' case that not only the above two Suits but also Arbitration Suit No.152 of 1991 and High Court Suit No.3425 of 1991 were the four proceedings going on between the same set of parties. The Plaintiffs had applied for discharge of the Court Receiver initially in all the four Suits. Thereafter the Plaintiffs desired the Court Receiver to be discharged only in the aforesaid two Suits being Arbitration Suit No.154 of 1991 and High Court Suit No.3424 of 1991. 4.The Court Receiver's Report dated 9.11.1992 in Suit No.3424 of 1991 shows the order by way of an endorsement of Justice Jhunjhunuwala signed by him on the report itself. It runs thus:- 3 “(a) & (b) – Yes. Sd/- S.M. Jhunjhunuwala 2/12/92” A similar Court Receiver' s Report made in the aforesaid Suits does not bear a similar endorsement of the learned Judge. The original report is not produced. It is not available with the Court Receiver's office. Its xerox copy does not show the endorsement. It may be mentioned that xerox copy can always be manipulated not to show a particular part of a document. Hence, xerox copy of the report cannot be taken as the ultimate guide to see whether the order was passed or not. 5.The Court Receiver appears to have given notice to the Plaintiffs for payment of Rs.42 Lakhs. The said payment is required to be made for property taxes in respect of the suit properties. It is the Plaintiffs' case that the Court Receiver has not done anything since 2.12.1992 and the notice that the Plaintiffs received for payment of Rs.42 Lakhs came as a shock to the Plaintiffs. Indeed, nothing has been shown to be done by the Court Receiver since 1992 if the Court Receiver did continue as Receiver of the suit premises from 2.12.1992 until he gave the aforesaid notice. 4 6.In view of the dispute between the parties as to whether the Court Receiver stood discharged or not by the order dated 2.12.1992, Justice A.S. Oka on 19th October 1992 sought to get the matter enquired from the Court Receiver's office. Two statements have come to be recorded in the enquiry. The statements, inter alia, show that there is no entry of the Court Receiver's Report, no original report, and no Inward Register showing the date of the order. 7.The Plaintiffs have produced their original correspondence file to show the circumstantial evidence with regard to the passing of the order of the Court in the above Suit along with the order passed in Suit No.3424 of 1991. 8.It may be remembered that the Plaintiffs' Attorneys have changed. Even so, the original file containing the papers and correspondence of the Attorneys' office, inter alia, of 1992 is produced. The Plaintiffs have produced in the file carbon copies of type-written letters of 1992 along with other carbon copies of the papers of 1992. Inter alia, is a letter dated 5th December 2002 written by the then Plaintiffs' Advocate to the Court Receiver in Arbitration Suit No.152of 1991. It requests the Court Receiver to refer to the Court Receiver' s 5 Report in connected Arbitration Petition No.154 of 1991 and Suit No.3424 of 1991 in which the order(s) dated 2.12.1992 were passed by Justice Jhunjhunuwala discharging the Court Receiver. It also requests the Court Receiver to make the report of the Court Receiver discharged as a Receiver of the suit partnership at the earliest. That bears the endorsement, inter alia, of the Court Receiver's office showing receipt by the Court Receiver. The copy letter is addressed to three other Attorneys of the three other partners of the Firm. The copy letter also bears receipts dated 5.12.1992 of two other Attorneys' offices. Hence, the Court Receiver as well as the Advocates of the other partners received the said copy letter dated 5.12.1992 on 5.12.1992 itself. This letter indeed shows that there were at-least two orders passed on 2.12.1992 in two proceedings relating to the partnership Firms of the parties. 9.That letter has been disputed. The enquiry with regard to the Receiver of that letter was also directed. The enquiry shows the statement of one S.M. Mungekar, Section Officer of the Court Receiver' s office. It shows that the original letter dated 5.12.1992 is also not found in the Court Receiver's office. It further shows that the Inward Register of 5.12.1993 of the Court Receiver's office is also not found and 6 the Inward Register only upto November 1992 was found. The receipt of the letter dated 5.12.1993 could be seen only in the further register for that period. If the Court Receiver' s office does not and cannot produce the said register, the litigant cannot be blamed for not having proved the receipt of the said letter. 10.When a copy letter is produced by a party, the original is required to be produced by the party to whom the letter is addressed. If the addressee of the letter cannot produce the original letter and the copy letter produced by the party shows that it was served in the normal course of the conduct of its business or affairs, it must be accepted as secondary evidence. The copy letter dated 5.12.1992 bears three original Rubber Stamps of the Court Receiver' s office and two Attorneys' offices. None of these Rubber Stamps is stated to be forged or fabricated. The Inward Register and the original letter are not found in the Court Receiver's office. Since Defendant No.1 has disputed that the Court Receiver has stood discharged, Defendant No.1 has, of course, not produced the original letters sent to the then Attorneys of Defendant No.1. 11.In view of this, the Plaintiffs were directed to produce their 7 entire file containing all the letters of the relevant period before and after December 1992 to see whether the copy letter has indeed been sent by their then Attorneys in the ordinary course of business of the Firm of the Attorneys. The Plaintiffs have produced the file. It indeed contains copy letters of the relevant period. The closest letters, inter alia, are : (i) Original letter of the Court Receiver dated 9.11.1992 in the above Suit No.154 of 1991 itself gives notice to the Attorneys of all the parties of an application to be made to Court. (ii) Letter dated 3rd December 1992 of M/s.Zaiwalla & Co., Attorneys of the other Defendants, mentions about the order of discharge of the Court Receiver dated 2.12.1992 in the aforesaid two Suits. This letter also bears the Court Receiver's stamp. (iii) A copy letter dated 8.2.1993 of M/s.Zaiwalla & Co., the other Defendants' Attorneys, further shows why in two of the four Suits between the parties, Court Receiver stood discharged and also how the Agency Agreements were entered into in the two other Suits. 8 (iv) There are several letters of 1992-93 of Zaiwalla & Co. and Gagrat & Co. who were then representing the other partners of the Firm, showing continuous correspondence between the Attorneys of the parties. 12.Upon seeing the file, it can be seen that the letter dated 5.12.1992 is not a lone letter, got up or fabricated by the Plaintiffs. It was a letter sent by the then Plaintiffs' Attorneys in the normal course. It mentions about the orders of discharge being passed on 2.12.1992, inter alia, in Arbitration Petition No.154 of 1991. 13. It can be seen that whilst applying for discharge in two identical applications, perhaps a genuine error, in not obtaining the endorsement of the learned Judge on both the original applications of the Court Receiver or in treating the matters together, arose. The absence of an endorsement of the learned Judge only is not determinative of the factum of the order being passed. The circumstantial evidence, contained in earlier and later correspondence between the Attorneys of the parties and the Court Receiver must be considered to determine the factum of what transpired about 16 years ago. The fact that the Court Receiver has not entered into Agency Agreements with any of the parties in 9 the aforesaid two Suits, whereas he has done so in two other Suits is a further pointer to that fact. Similarly, the absence of anything being done by the Court Receiver for all the years after the said orders requires to be appreciated. 14.The letter dated 5.12.1993 shows the two orders passed. 15.Similarly, since there were four Suits that the Plaintiffs were prosecuting together and since the Plaintiffs earlier also required the Court Receiver to be discharged in the four Suits but later applied for discharge only in two of the four Suits in which identical orders came to be passed, a genuine human error by the Court Receiver's office in not keeping or maintaining the papers of one of the Suits can be expected. 16.The substance of the Plaintiffs' application and the purpose of the application is required to be seen. The Plaintiffs are in the conduct of the proceedings. The Plaintiffs decide whether they must apply for and continue the order of the Court Receiver. They may apply for discharge of the Court Receiver at any time. They have indeed done so in this group of cases. One order has admittedly been passed. Since an identical report was made in another matter and identical order was passed in another matter, some error 10 would have crept in. The correspondence is pointer to the fact of whether or not the order was passed. It shows order (s) being passed on 2.12.1992. 17.Therefore, the Court Receiver must be taken to have been discharged on 2.12.1992 on the application of the Plaintiffs themselves in both the Suit and the Arbitration Suit. 18.Consequently, the Court Receiver' s prayer for discharge now need not be granted. It is clarified that he was already discharged on 2.12.1992. Accordingly, the Court Receiver need not pay the taxes as per the notice for property taxes by the parties. It will be the liability of the parties, including the Plaintiffs to make payment of property taxes. 19.The symbolic possession of the suit premises was taken when the Court Receiver was appointed. The Court Receiver shall issue his letter to the party from who he took possession handing over such symbolic possession with notice to all the other parties in the aforesaid two Suits. 20. The Court Receiver' s Report is disposed of accordingly. [SMT.ROSHAN DALVI, J.]