: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1034 OF 2009 IN EXECUTION APPLICATION (L) NO.510 OF 2003 IN SUMMARY SUIT NO.4491 OF 1996 ALONGWITH COURT RECEIVER S REPORT Renuka Mohan Dhir .. Plaintiff V/s. Unicorn Fantasies & Anr. .. Defendants And Court Receiver, High Court, Bombay .. Respondent And Bombay Surgical Works .. Applicant/ Landlord And The Blaze Flash Courier & Ors. .. Respondents ..... Mr. G.G. Ketkar, 1 st Asst. to Court Receiver present Mr. H.S. Shreepad Murthy in support of CHS No.1034/09. Ms. Mohana Nair i/by JMB Partners for Respondent Nos.13 and 14 and in support of CHS 1354/09. Mr. S.J. Khera for plaintiff / decree holders ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 14th OCTOBER 2009. P.C. : 1. This Chamber Summons has been moved by the Applicant for several reliefs including seeking discharge of the Court Receiver. 2. The matter has a chequered History and it is not necessary to reproduce the events after the Decree in : 2 : the aforementioned Summary Suit had been passed. 3. These events are fully recorded in the order dated 22 nd June, 2008 passed by this Court in an earlier Chamber Summons which was moved by the very Applicant, who is before me. 4. This Court clearly held that the Applicant has a right, title and interest in the property. However, it refrained from passing any further orders on the ground of pendency of the suit instituted by the Applicant in the Small Causes Court and finding that even if the parties have been inducted as agents of the Court Receiver for their eviction, it would be necessary for the Applicant to adopt appropriate proceedings in appropriate Court. Be that as it may, this Court has in the order passed clearly held that the decree holder and the judgment debtor have colluded to deal with the property so as to create third party rights therein. The Applicant has been contending that in Execution of the decree they have got the Court Receiver appointed. This has prejudiced the rights of the applicant who is claiming to be the landlord of the property. 5. On the last occasion when this matter was before me, I had directed the Court Receiver to prepare a : 3 : comprehensive report. The report is not wholly satisfactory and comprehensive, yet, there is no point in adjourning the proceedings further in as much as neither the parties appearing before me nor the Court Receiver have been able to assist the Court in finding out as to whether the decrees in all the Summary Suits are fully satisfied or not. Across the bar Mr. Khera appearing for the Assignee of the decree states that decree in two Summary Suits are still not satisfied and, therefore, the execution application can be proceeded with. 6. However, finding that the state of affairs are completely unsatisfactory and even the Court Receiver making a vague statements, it is directed that the Prothonotary and Senior Master should after hearing both parties submit a report to the Court so that the Court can hold whether the Execution Application (L) No.510 of 2003 should be kept pending on the file of this Court any further or not. The Prothonotary and Senior Master must examine the records in each of the Summary Suits and after allowing parties to satisfy her, place the report before this Court within a period of 12 weeks from today. Both sides can appear before the Prothonotary and Senior Master and point out as to which decrees are fully satisfied and which are remaining to : 4 : be executed and to what extent. 7. The report of the Court Receiver indicates that he has been appointed in Summary Suit No.81,82,83 of 1993 and his appointment is continued in Suit No.4491 of 1996. He has taken formal possession of the suit premises from the occupants listed in para 3 of the report. He has verified the record and has stated that the occupants whose names are set out in para 3 of the report dated 1 st October, 2009, are in possession of the property. The compensation has been recovered from them. The Court Receiver has referred to the order dated 26 th July, 2007 passed by the Small Causes Court in a Suit instituted by the Applicant. The Court Receiver has pointed out that the Applicant before me is plaintiff in the suit. It is entitled to recover a sum of Rs. 29,00,000/- for the period from 1 st December, 1997 to July, 2007 and the Court Receiver has to deposit a sum of Rs.3,75,000/- in the Small Causes Court for the period from 1 st August, 2007 to October, 2008. However, he relied upon the order dated 26 th September, 2007 passed by this Court directing retaining of the amount payable or paid to the Court Receiver and not to disburse the same to any party. Therefore, he had not made any payment to any parties and invested the Amounts in a Nationalized Bank. : 5 : 8. After referring to the order dated 27 th June, 2008 of Hon ble Smt. Justice R.S. Dalvi, the Court Receiver has pointed out that he has submitted a report in pursuance of this order. He has pointed out as to how many persons are in arrears of compensation. He has, therefore, stated that he has taken forcible possession of the premises more particularly set out in para 9 of his report. The Court Receiver has stated that the compensation has been paid by some of the occupants. However, as observed above, the Court Receiver s Report does not throw light on how much is the amount due and payable under the decree. The Court Receiver states that he has to make payment of property taxes and the funds, therefore, are insufficient with him. It is in these circumstances, the Court Receiver has sought following directions. (a)What steps the Court Receiver, High Court, Bombay should take as per para 16 as there is insufficient funds to comply the order dated 26 th July, 2007 read with order dated 27 th June, 2008. (b) As per para 17, the Bombay Surgical Work, Applicant be directed to take immediately steps to adopt future proceedings as required against the parties inducted in the licensed premises, through the Court Receiver in appropriate Court, in terms of order dated 27 th June, 2008. (c) Any other directions this Hon ble Court may deem fit and proper in the above matter. : 6 : 9. After having heard Mr. Murthy at some length and having considered his grievances which are primarily that the Court machinery has been used to deprive the landlord of his rights in the property, that Applicants who are before me are forced to institute the proceedings against the persons with whom they have no privity of contract, that the machinery of the Court Receiver is utilized by the Judgment Debtors and the Assignee of the decree by colluding with each other and inducting strangers in the property, therefore, contempt proceedings be initiated so also the Court Receiver be discharged, I am satisfied that at this stage, it will not be proper to pass an order discharging the Receiver straightaway. More so, when the Applicant himself has instituted legal proceedings in the Court of Small Causes, which are pending and to which the Receiver is also a party. However, it is directed that the Court Receiver with a view to fully implement the order of this Court dated 27 th June, 2008 should proceed and handover physical possession of the premises, in terms of para 9 of his report, to the Applicant. In other words, the Court Receiver should handover physical possession of the property / premises in possession of the following parties to the Applicant within a period of 2 weeks from the receipt of the copy of this order. : 7 : 1. M/s. Enva Chem (India) Ltd. 2. M/s. Equator Thermoplastic 3. M/s. Vapson Chemicals 4. M/s. Impact Information & Marketing Ltd. 5. M/s. Impact Information & Marketing Ltd. 10. Further, the Court Receiver should recover the amounts if outstanding from all persons who have been appointed as Agents and if they fail to do so, he should seek further directions of this Court. In other words, if the terms and conditions of the Agency Agreement are breached and violated, then, he is free to act against such persons in the same manner as he has proceeded against other occupants. If the Court Receiver finds that he has been obstructed in any manner in taking physical possession from the Occupants / Agents appointed by him, then, he should seek appropriate directions from the Court. The Applicant is at liberty to initiate such proceedings as are permissible in law against these persons but the Court Receiver upon being satisfied that there is a breach of the terms and conditions of the Agency Agreement should not delay taking physical possession and even forcibly removing the defaulting occupants, merely because the suit in the Small Causes Court is pending or that the Applicant has instituted other legal proceedings. He must discharge his duties as a Court Receiver independently of the : 8 : proceedings either pending or to be instituted by the Applicant. 11. At this stage, Mr. Khera submits that against the order dated 22 nd June, 2008, the respondent Nos.9 and 11 to this Chamber Summons have filed an Appeal which Appeal is yet not admitted by the Division Bench and pending for admission. Further, against the order passed by the Court of Small Causes, Bombay on 26 th July, 2007 in L.E.&C. Suit No.135/168 of 1997 (Civil Revision Application) an Appeal has been preferred by this Applicant in the Small Causes Court, Bombay which is also pending. Both these proceedings shall be decided on their own merits and in accordance with law. 12. The Chamber Summons is disposed off in terms of the Court Receiver s Report dated 1 st October, 2009 with the clarification as set out above. It is stated that the Municipal Taxes in respect of the property have not been paid. Even the Court Receiver has given details of the outstanding Municipal Taxes and the B.M.C. letter dated 26 th November, 2008 is referred to in para 16 of his report. The Municipal Corporation of Greater Bombay has claimed from the Court Receiver Property Taxes to the tune of Rs.10,71,615/-. The Court Receiver to pay the property Taxes from the amount lying with him but if : 9 : there is a dispute to the quantum of Taxes and the assessment levy and valuation thereof, it would be open for the aggrieved parties to initiate legal proceedings in that behalf and challenge the said levy, assessment and valuation. However, the disbursement by the Court Receiver of the Municipal Taxes shall be without prejudice to the rights and contentions of the parties to dispute the Municipal Taxes. All contentions in that behalf are kept open. The Chamber Summons is disposed off. All concerned to act upon an authenticated copy of this order. (S.C. DHARMADHIKARI, J.)