1 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL SIDE JURISDICTION APPEAL NO. 848 OF 2005 IN NOTICE OF MOTION NO. 2405 OF 2005 IN SUIT NO. 4847 OF 1995 Benzer Interiors Pvt. Ltd., & Anr. ... Appellants. (Org.Def.Nos.1& 10) Vs. Feroze Homi Duggan & Ors. ... Respondents. (Org.Plaintiff & other defendants) --- Mr. Ajit Anekar i/by M/s.Paras Kuhad & Associate for the Appellants. Mr. Shailesh Shah i/by Soloman & Co. for the Respondent No.1. Mr. Zubin Behram Kamdin with Vivek Vashi & Ms. Sushma Negaraj i/by Bharucha & Partners for Respondent No.3. Mr. Zal Andhyarujina with Amey Nahar & Amit Kanani i/by M/s. Hariani & Co. for Respondent Nos. 4 and 5. --- WITH APPEAL NO. 39 OF 2010 IN NOTICE OF MOTION NO.2405 OF 2002 IN SUIT NO. 4847 OF 1995 Noshir Talati ... Appellant/Org. Defendant No.2. Vs. Feroze Homi Duggan & Others ... Respondents. --- 2 Mr.Zubin Behram Kamdin with Vivek Vashi & Ms. Sushma Nagaraj i/by Bharucha & Partners for the Appellant. Mr. Shailesh Shah i/by Soloman & Co. for Respondent No.1. Mr. Zal Andhyarujina a/w. Amey Nabar & Amit Kanani i/by Hariani & Co. for the Respondent Nos. 4 and 5. --- WITH APPEAL (LDG.)NO. 629 OF 2008 IN NOTICE OF MOTION NO. 2405 OF 2002 IN SUIT NO. 4847 OF 1995 Behram B. Dubash, Mumbai ... Appellant. Vs. Feroze Homi Duggan & Ors. ... Respodents. --- Mr. Zal Andhyarujina with Amey Nabar & Amit Karani i/by M/s. Hariani & Co. for the Appellant. Mr.Zubin Behram Kamdin with Vivek Vashi & Ms. Sushma Nagaraj i/by Bharucha & Partners for the Appellant. --- WITH APPEAL (LDG.)NO. 636 OF 2008 IN NOTICE OF MOTION NO. 2405 OF 2002 IN SUIT NO. 4847 OF 1995 Darab B. Dubash, Mumbai ... Appellant. Vs. Feroze Homi Duggan & Ors. ... Respodents. ----- Mr. Zal Andhyarujina with Amey Nabar & Amit Karani 3 i/by M/s. Hariani & Co. for the Appellant. Mr.Zubin Behram Kamdin with Vivek Vashi & Ms. Sushma Nagaraj i/by Bharucha & Partners for Respondent No.3. --- CORAM: D.K.DESHMUKH AND V.R.KINGAONKAR,JJ. DATED: 17TH MARCH, 2010 P.C.: 1. All these Appeals are directed against the same order passed by the learned single Judge of this court dated 4th March, 2005 in a Notice of Motion No. 2405 of 2005. 2. The relevant facts are that in a suit filed by the respondent no.1, by order dated 2nd April, 1997, the defendant no.1 i.e. Benzer Interiors Pvt.Ltd. was appointed as a Receiver. Defendant no. 1 is a company incorporated under the provisions of the Companies Act. Defendant no.10 was one of the directors of the defendant no.1-Company and he had filed undertaking pursuant to the court s order, appointing the defendant no.1- company as Receiver. It appears that defendant no.1 committed several 4 defaults and breaches of the court s orders and, therefore, the plaintiff took out the notice of motion no. 2405 of 2005 for striking out the defence of defendant nos. 1 to 5 and 10. Defendant no.1 is the Company. Defendant Nos.2 to 5 are its directors and defendant no.10 is the person who had filed the undertaking on behalf of defendant no.1. By order dated 4th of March, 2005, the learned single Judge of this court has granted the motion and struck off the defence of defendant nos. 1 to 5 and defendant no.10. Therefore, the Appeal No. 848 of 2005 is filed by defendant nos. 1 and 10. The Appeal No. 13 of 2010 is filed by defendant no.2 and Appeal No. 629 of 2008 is filed by defendant no.4 and Appeal No. 636 of 2008 is filed by defendant no.5. 3. Now taking up the Appeal filed by the defendant nos. 1 and 10 for consideration first, the learned counsel appearing for the appellants raised two contentions before us. The first contention was that the order dated 2nd April, 1997 of which the breach is alleged to have been committed by the 5 defendant nos. 1 and 10 was not passed in the suit no. 4847 of 1995 in which notice of motion no. 2405 of 2002 was taken out and, therefore, according to the learned counsel appearing for the appellants, the order of striking out their defence in suit no. 4847 of 1995 could not have been made. Admittedly this contention was not raised before the learned single Judge and therefore, we cannot permit this contention to be raised before us. 4. The second contention raised by the learned counsel appearing for the appellants was that though the defendant no.1 had committed breaches in depositing the amount of royalty, ultimately the entire amount of royalty has been deposited. This is a mitigating circumstance, according to the learned counsel, that ought to have been taken into consideration by the learned single Judge. However, perusal of the order of the learned single Judge shows that even this contention was not raised before the learned single Judge. As a mitigating circumstance only one circumstance was pointed out 6 to the learned singe Judge that the possession of the premises was handed over by the defendant no.1. That circumstance has been duly considered by the learned single Judge in paragraph 8 of his order and he has held that there is no substance in the said contention because the possession was not voluntarily handed over by the defendant no.1 but it was forced to hand over the possession. Apart from this contention, only one contention appears to have been raised before the learned single Judge and it is that order for striking off the defence cannot be made in this case because it is a directory provision. That contention has been dealt with by the learned single Judge in detail in his order. In any case that contention was not urged before us. Taking over all view of the matter and as it is an admitted position that the defendant no.1 has committed several breaches of the orders passed by the court and even after committing breaches, the defendant no.1 did not voluntarily hand over possession of the premises and the proceedings are required to be taken out against the defendant no.1 7 for delivery of possession, we do not find any merit in the contention raised on behalf of the appellants. 5. Taking over all view of the matter, therefore, we do not find any error in the order impugned, striking out the defence of defendant nos. 1 and 10. Sofaras defendant nos. 2,4 and 5 are concerned, the submission of the learned counsel appearing for the appellants is that though by the impugned order their defence has been directed to be struck off, there is no discussion in the order about their role in committing breach of the order and as to why their defence is being struck out. When this was pointed out to the learned counsel appearing for the original plaintiffs, except for saying that their defence has been struck off by the court because they were directors of the defendant no.1 company, he could not point out to us any discussion in the order in relation to the striking off the defence of the defendant nos.2,4 and 5. In our opinion, even assuming that defendant nos. 2,4 and 5 8 were directors of the defendant no. 1 company at the relevant time but merely because they were directors their defence could not have been struck out. The court was required to record a finding as to why their defence is being struck out; whether they have played any role in defendant no.1 s committing the breach of the court s order. In the absence of any finding recorded in relation to defendant nos. 2, 4 and 5, in our opinion, the order of the learned single Judge insofar as striking out the defence of defendant nos. 2,4 and 5 will have to be set aside. 6. In the result, therefore, Appeal No. 848 of 2005 fails and is dismissed. 7. Appeal Nos. 13 of 2010, 629 of 2008 and 636 of 2008 succeed and are allowed. The order of the learned single Judge impugned in these Appeals, striking out the defence of the defendant nos. 2,4 and 5 is set aside. (D.K. DESHMUKH,J.) (V.R.KINGAONKAR,J.)