IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.853 OF 2006 NOTICE OF MOTION NO.853 OF 2006 NOTICE OF MOTION NO.853 OF 2006 IN IN IN SUIT NO.3159 OF 1996 SUIT NO.3159 OF 1996 SUIT NO.3159 OF 1996 Kundan Sippy ...Plaintiff Kundan Sippy ...Plaintiff Kundan Sippy ...Plaintiff Vs. Vs. Vs. Orient Charters & Ors. ...Defendants Orient Charters & Ors. ...Defendants Orient Charters & Ors. ...Defendants Mr.V.P.Vaze, Advocate for Plaintiff in support of Mr.V.P.Vaze, Advocate for Plaintiff in support of Mr.V.P.Vaze, Advocate for Plaintiff in support of Notice of Motion Notice of Motion Notice of Motion Mr.Anshuman Jagtap, Advocate i/b. N. Jagtap & Co. for Mr.Anshuman Jagtap, Advocate i/b. N. Jagtap & Co. for Mr.Anshuman Jagtap, Advocate i/b. N. Jagtap & Co. for Defendant Nos.2 and 3 to show cause Defendant Nos.2 and 3 to show cause Defendant Nos.2 and 3 to show cause CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. DATE : 18TH DECEMBER, 2006. DATE : 18TH DECEMBER, 2006. DATE : 18TH DECEMBER, 2006. P.C. P.C. P.C. 1. The suit is filed by a Partner against the 1. The suit is filed by a Partner against the 1. The suit is filed by a Partner against the Partnership Firm and other partners for dissolution of the Partnership Firm and other partners for dissolution of the Partnership Firm and other partners for dissolution of the Firm of the First Defendants with effect from 26th July, Firm of the First Defendants with effect from 26th July, Firm of the First Defendants with effect from 26th July, 1996 and accounts. 1996 and accounts. 1996 and accounts. 2. The Plaintiff has sought the appointment of the 2. The Plaintiff has sought the appointment of the 2. The Plaintiff has sought the appointment of the Court Receiver and certain injunctions against creation of Court Receiver and certain injunctions against creation of Court Receiver and certain injunctions against creation of third party interest/rights in respect of the assets and third party interest/rights in respect of the assets and third party interest/rights in respect of the assets and properties of the dissolved firm. properties of the dissolved firm. properties of the dissolved firm. 3. Since the filing of the suit and the initial 3. Since the filing of the suit and the initial 3. Since the filing of the suit and the initial appointment of the Court Receiver the Plaintiff has taken appointment of the Court Receiver the Plaintiff has taken appointment of the Court Receiver the Plaintiff has taken out a number of Notices of Motion. out a number of Notices of Motion. out a number of Notices of Motion. 4. In the first of such Notice of Motion No.2593 of 4. In the first of such Notice of Motion No.2593 of 4. In the first of such Notice of Motion No.2593 of 1999 the Plaintiff sought payments to certain outstanding 1999 the Plaintiff sought payments to certain outstanding 1999 the Plaintiff sought payments to certain outstanding creditors, to the Government and Semi Government creditors, to the Government and Semi Government creditors, to the Government and Semi Government Authorities like income tax as well as tax, provident fund Authorities like income tax as well as tax, provident fund Authorities like income tax as well as tax, provident fund etc., to professionals attending to accounts, legal and etc., to professionals attending to accounts, legal and etc., to professionals attending to accounts, legal and taxation matters, to North Canara, GSB Co-operative Bank taxation matters, to North Canara, GSB Co-operative Bank taxation matters, to North Canara, GSB Co-operative Bank for repayment of its loan, and to various third parties, for repayment of its loan, and to various third parties, for repayment of its loan, and to various third parties, the amounts specified against those parties. A detailed the amounts specified against those parties. A detailed the amounts specified against those parties. A detailed order for disbursement of funds came to be passed in that order for disbursement of funds came to be passed in that order for disbursement of funds came to be passed in that Notice of Motion on 21st November, 2000. Notice of Motion on 21st November, 2000. Notice of Motion on 21st November, 2000. 5. The Plaintiff took out another Notice of Motion 5. The Plaintiff took out another Notice of Motion 5. The Plaintiff took out another Notice of Motion No.468 of 2001 for withdrawal of Rs.36,550/-. Order came No.468 of 2001 for withdrawal of Rs.36,550/-. Order came No.468 of 2001 for withdrawal of Rs.36,550/-. Order came to be passed accordingly. to be passed accordingly. to be passed accordingly. 6. The Plaintiff took out yet another Notice of 6. The Plaintiff took out yet another Notice of 6. The Plaintiff took out yet another Notice of Motion No.831 of 2004 for payment of Rs.1,00,000/- to one Motion No.831 of 2004 for payment of Rs.1,00,000/- to one Motion No.831 of 2004 for payment of Rs.1,00,000/- to one Pankaj Jetli, Rs.3,00,000/- to one Purnima Jetli and Pankaj Jetli, Rs.3,00,000/- to one Purnima Jetli and Pankaj Jetli, Rs.3,00,000/- to one Purnima Jetli and Rs.3,00,000/- to Shashi Jetli. That Notice of Motion came Rs.3,00,000/- to Shashi Jetli. That Notice of Motion came Rs.3,00,000/- to Shashi Jetli. That Notice of Motion came to be withdrawn. to be withdrawn. to be withdrawn. 7. The Plaintiff took out yet another Notice of 7. The Plaintiff took out yet another Notice of 7. The Plaintiff took out yet another Notice of Motion No.3063 of 2004 for settlement of the claims of the Motion No.3063 of 2004 for settlement of the claims of the Motion No.3063 of 2004 for settlement of the claims of the above said Purnima, Pankaj and Shashi Jetli of above said Purnima, Pankaj and Shashi Jetli of above said Purnima, Pankaj and Shashi Jetli of Rs.8,00,000/-, MTNL bill, payment to 29 employees, payment Rs.8,00,000/-, MTNL bill, payment to 29 employees, payment Rs.8,00,000/-, MTNL bill, payment to 29 employees, payment to two of the Firm’s partners, professional fees of M/s. to two of the Firm’s partners, professional fees of M/s. to two of the Firm’s partners, professional fees of M/s. R.S. Bapat Associates. M/s. Sakdev and Vaze Advocates R.S. Bapat Associates. M/s. Sakdev and Vaze Advocates R.S. Bapat Associates. M/s. Sakdev and Vaze Advocates and one "Co-ordinator" to the extent of Rs.417368/- and one "Co-ordinator" to the extent of Rs.417368/- and one "Co-ordinator" to the extent of Rs.417368/- Rs.6.20 Lakhs, Rs.8088/-, Rs.1,47,025/-, Rs.6,063/-, Rs.6.20 Lakhs, Rs.8088/-, Rs.1,47,025/-, Rs.6,063/-, Rs.6.20 Lakhs, Rs.8088/-, Rs.1,47,025/-, Rs.6,063/-, Rs.50,000/- and Rs.10,20,000/-. An order came to be Rs.50,000/- and Rs.10,20,000/-. An order came to be Rs.50,000/- and Rs.10,20,000/-. An order came to be passed as prayed upon Defendant No.4 consenting to such passed as prayed upon Defendant No.4 consenting to such passed as prayed upon Defendant No.4 consenting to such payment. payment. payment. 8. The Plaintiff has now taken out this 5th Notice of 8. The Plaintiff has now taken out this 5th Notice of 8. The Plaintiff has now taken out this 5th Notice of Motion for direction to the Court Receiver to pay the Motion for direction to the Court Receiver to pay the Motion for direction to the Court Receiver to pay the professional bill of D.M.Harish and Company for an amount professional bill of D.M.Harish and Company for an amount professional bill of D.M.Harish and Company for an amount of Rs.40,000/-towards income tax work, M/s. Bapat of Rs.40,000/-towards income tax work, M/s. Bapat of Rs.40,000/-towards income tax work, M/s. Bapat Associates of Rs.60,000/- towards fees and reimbursement Associates of Rs.60,000/- towards fees and reimbursement Associates of Rs.60,000/- towards fees and reimbursement of expenses and M/s.Sakdev and Vaze Advocates for of expenses and M/s.Sakdev and Vaze Advocates for of expenses and M/s.Sakdev and Vaze Advocates for Rs.15,000/- towards legal advise and expenses. Rs.15,000/- towards legal advise and expenses. Rs.15,000/- towards legal advise and expenses. 9. This Notice of Motion is served by hand delivery 9. This Notice of Motion is served by hand delivery 9. This Notice of Motion is served by hand delivery on Defendants 1 and 2. Defendants 3 and 4 are represented on Defendants 1 and 2. Defendants 3 and 4 are represented on Defendants 1 and 2. Defendants 3 and 4 are represented by their Advocate. Defendant No.5 is the brother of by their Advocate. Defendant No.5 is the brother of by their Advocate. Defendant No.5 is the brother of Defendants 3 and 4 is stated to be served by registered Defendants 3 and 4 is stated to be served by registered Defendants 3 and 4 is stated to be served by registered post but the acknowledgment is not received. The learned post but the acknowledgment is not received. The learned post but the acknowledgment is not received. The learned Advocate for the Defendants 3 and 4 states that Defendants Advocate for the Defendants 3 and 4 states that Defendants Advocate for the Defendants 3 and 4 states that Defendants 3 and 4 have been declared insolvent. It is seen that 3 and 4 have been declared insolvent. It is seen that 3 and 4 have been declared insolvent. It is seen that after the filing of the suit and upon the order of after the filing of the suit and upon the order of after the filing of the suit and upon the order of appointment of Court Receiver, the Plaintiff has appointment of Court Receiver, the Plaintiff has appointment of Court Receiver, the Plaintiff has continuously taken out Notices of Motion for payments of continuously taken out Notices of Motion for payments of continuously taken out Notices of Motion for payments of large amounts to various third parties as well as for the large amounts to various third parties as well as for the large amounts to various third parties as well as for the fees stated to be rendered by various professionals fees stated to be rendered by various professionals fees stated to be rendered by various professionals without absolutely any particulars for making the payments without absolutely any particulars for making the payments without absolutely any particulars for making the payments to them. Payments to the extent of Rs.60,000/-, to them. Payments to the extent of Rs.60,000/-, to them. Payments to the extent of Rs.60,000/-, Rs.40,000/- and Rs.1,20,000/- have been earlier sought for Rs.40,000/- and Rs.1,20,000/- have been earlier sought for Rs.40,000/- and Rs.1,20,000/- have been earlier sought for by the Plaintiff and allowed by the Court for the by the Plaintiff and allowed by the Court for the by the Plaintiff and allowed by the Court for the professional services stated to be rendered by the professional services stated to be rendered by the professional services stated to be rendered by the professionals against seeking payments in this Notice of professionals against seeking payments in this Notice of professionals against seeking payments in this Notice of Motion. One M/s. R.S. Bapat and Aossociates is stated Motion. One M/s. R.S. Bapat and Aossociates is stated Motion. One M/s. R.S. Bapat and Aossociates is stated to a Company Secretary. He was allowed payments of to a Company Secretary. He was allowed payments of to a Company Secretary. He was allowed payments of Rs.60,000/- in N.M.No.3063 of 2004. The Plaintiff has Rs.60,000/- in N.M.No.3063 of 2004. The Plaintiff has Rs.60,000/- in N.M.No.3063 of 2004. The Plaintiff has applied for payment of Rs.60,000/- again to the same applied for payment of Rs.60,000/- again to the same applied for payment of Rs.60,000/- again to the same professional for "fees and reimbursement of expenses". professional for "fees and reimbursement of expenses". professional for "fees and reimbursement of expenses". 10. The particulars of services rendered by these 10. The particulars of services rendered by these 10. The particulars of services rendered by these professionals is not shown. What are the amounts for professionals is not shown. What are the amounts for professionals is not shown. What are the amounts for reimbursement is also not shown. Paragraph 4 of the reimbursement is also not shown. Paragraph 4 of the reimbursement is also not shown. Paragraph 4 of the affidavit in support shows that the firm of M/s. R.S. affidavit in support shows that the firm of M/s. R.S. affidavit in support shows that the firm of M/s. R.S. Bapat & Associates has rendered services as Co-ordinator Bapat & Associates has rendered services as Co-ordinator Bapat & Associates has rendered services as Co-ordinator for handling the work of Co-ordination with one C.V.K. & for handling the work of Co-ordination with one C.V.K. & for handling the work of Co-ordination with one C.V.K. & Associates as a Consultant appointed by the Court Associates as a Consultant appointed by the Court Associates as a Consultant appointed by the Court Receiver. The handwritten material at the end of Receiver. The handwritten material at the end of Receiver. The handwritten material at the end of paragraph 4 shows that the reimbursement of expenses are paragraph 4 shows that the reimbursement of expenses are paragraph 4 shows that the reimbursement of expenses are those incurred after the last assignment of the work those incurred after the last assignment of the work those incurred after the last assignment of the work handled by them. It is not shown in the affidavit of the handled by them. It is not shown in the affidavit of the handled by them. It is not shown in the affidavit of the Plaintiff what are the particulars of the work carried out Plaintiff what are the particulars of the work carried out Plaintiff what are the particulars of the work carried out by M/s. R.S.Bapat Associates. by M/s. R.S.Bapat Associates. by M/s. R.S.Bapat Associates. 11. In Noticeof Motion No.3063 of 2004 the Plaintiff 11. In Noticeof Motion No.3063 of 2004 the Plaintiff 11. In Noticeof Motion No.3063 of 2004 the Plaintiff sought for and obtained an order for payment of sought for and obtained an order for payment of sought for and obtained an order for payment of Rs.1,20,000/-to one K.K.Sippy, the son of the Plaintiff Rs.1,20,000/-to one K.K.Sippy, the son of the Plaintiff Rs.1,20,000/-to one K.K.Sippy, the son of the Plaintiff for letting out his office for storage of records for the for letting out his office for storage of records for the for letting out his office for storage of records for the use by the Co-Ordinator. use by the Co-Ordinator. use by the Co-Ordinator. 12. It is therefore, seen that the Plaintiff has 12. It is therefore, seen that the Plaintiff has 12. It is therefore, seen that the Plaintiff has sought payment to be made not only to the Co-Ordinator in sought payment to be made not only to the Co-Ordinator in sought payment to be made not only to the Co-Ordinator in a sum of Rs.60,000/- but to his son in a sum of a sum of Rs.60,000/- but to his son in a sum of a sum of Rs.60,000/- but to his son in a sum of Rs.1,20,000/- (which is double the fees of the Rs.1,20,000/- (which is double the fees of the Rs.1,20,000/- (which is double the fees of the Co-Ordinator himself !) for letting out the premises for Co-Ordinator himself !) for letting out the premises for Co-Ordinator himself !) for letting out the premises for storage of records. storage of records. storage of records. 13. The Plaintiff had applied for payment of 13. The Plaintiff had applied for payment of 13. The Plaintiff had applied for payment of Rs.60,000/- again to be made to M/s. R.S. Bapat Rs.60,000/- again to be made to M/s. R.S. Bapat Rs.60,000/- again to be made to M/s. R.S. Bapat Associates. Associates. Associates. 14. It is seen that in the earlier Notice of Motion 14. It is seen that in the earlier Notice of Motion 14. It is seen that in the earlier Notice of Motion the Plaintiff sought payment to his Advocate of the Plaintiff sought payment to his Advocate of the Plaintiff sought payment to his Advocate of Rs.50,000/- and again in this Notice of Motion has sought Rs.50,000/- and again in this Notice of Motion has sought Rs.50,000/- and again in this Notice of Motion has sought payment to his Advocate of Rs.15,000/-. No particulars of payment to his Advocate of Rs.15,000/-. No particulars of payment to his Advocate of Rs.15,000/-. No particulars of the work done or the advise given or the expenses incurred the work done or the advise given or the expenses incurred the work done or the advise given or the expenses incurred as stated by the Plaintiff is given. as stated by the Plaintiff is given. as stated by the Plaintiff is given. 15. The Plaintiff has further sought payment of 15. The Plaintiff has further sought payment of 15. The Plaintiff has further sought payment of Rs.40,000/- "for income tax work" to an income tax Rs.40,000/- "for income tax work" to an income tax Rs.40,000/- "for income tax work" to an income tax professional. It is not known what income tax is payable professional. It is not known what income tax is payable professional. It is not known what income tax is payable or paid by the first Defendant Firm or its partners. or paid by the first Defendant Firm or its partners. or paid by the first Defendant Firm or its partners. Paragraph 3 of the affidavit in support which seeks to Paragraph 3 of the affidavit in support which seeks to Paragraph 3 of the affidavit in support which seeks to detail the reasons for the payment shows the work done detail the reasons for the payment shows the work done detail the reasons for the payment shows the work done "relating to a proceeding before income tax appellate "relating to a proceeding before income tax appellate "relating to a proceeding before income tax appellate Tribunal" for which the bill of Rs.40,000/- is received. Tribunal" for which the bill of Rs.40,000/- is received. Tribunal" for which the bill of Rs.40,000/- is received. No particulars of the "proceeding" are given. No particulars of the "proceeding" are given. No particulars of the "proceeding" are given. 16. It is seen that after seeking to dissolve the Firm 16. It is seen that after seeking to dissolve the Firm 16. It is seen that after seeking to dissolve the Firm the Plaintiff has not applied for accounts to be made of the Plaintiff has not applied for accounts to be made of the Plaintiff has not applied for accounts to be made of the dissolved firm as per prayer (b). The Suit has been the dissolved firm as per prayer (b). The Suit has been the dissolved firm as per prayer (b). The Suit has been filed in 1996. For the last one decade the Plaintiff has filed in 1996. For the last one decade the Plaintiff has filed in 1996. For the last one decade the Plaintiff has taken out several Notices of Motion only for making taken out several Notices of Motion only for making taken out several Notices of Motion only for making payments of large amounts without particulars. The payments of large amounts without particulars. The payments of large amounts without particulars. The payment to be made specially to M/s. R.S. Bapat payment to be made specially to M/s. R.S. Bapat payment to be made specially to M/s. R.S. Bapat Associates who are stated to be a Firm of Company Associates who are stated to be a Firm of Company Associates who are stated to be a Firm of Company Secretaries is vague and left entirely unsubstantiated. Secretaries is vague and left entirely unsubstantiated. Secretaries is vague and left entirely unsubstantiated. It is sought to be made of very large extent. The payment It is sought to be made of very large extent. The payment It is sought to be made of very large extent. The payment is sought to be repeated after the last Notice of Motion. is sought to be repeated after the last Notice of Motion. is sought to be repeated after the last Notice of Motion. Particulars of the work done are not shown. It is not Particulars of the work done are not shown. It is not Particulars of the work done are not shown. It is not known what is "Co-Ordination work". It is not understood known what is "Co-Ordination work". It is not understood known what is "Co-Ordination work". It is not understood how a Company Secretary’s service would be required by a how a Company Secretary’s service would be required by a how a Company Secretary’s service would be required by a Partnership Firm. The payment of double the amount of Partnership Firm. The payment of double the amount of Partnership Firm. The payment of double the amount of professional services to the son of the Plaintiff for professional services to the son of the Plaintiff for professional services to the son of the Plaintiff for merely letting out the premises is exorbitant. Taking out merely letting out the premises is exorbitant. Taking out merely letting out the premises is exorbitant. Taking out Notices of Motion, one after the another, for payment of Notices of Motion, one after the another, for payment of Notices of Motion, one after the another, for payment of large sums of money without absolutely any particulars in large sums of money without absolutely any particulars in large sums of money without absolutely any particulars in the affidavit in support or without showing sufficient the affidavit in support or without showing sufficient the affidavit in support or without showing sufficient cause for such payment is the abuse of legal process. The cause for such payment is the abuse of legal process. The cause for such payment is the abuse of legal process. The Court Receiver appointed in the Suit is not required to Court Receiver appointed in the Suit is not required to Court Receiver appointed in the Suit is not required to continue to collect amounts and make payments over a continue to collect amounts and make payments over a continue to collect amounts and make payments over a number of years for the affairs of the firm sought to be number of years for the affairs of the firm sought to be number of years for the affairs of the firm sought to be dissolved. dissolved. dissolved. 17. The Defendants 3 and 4 are stated to have been 17. The Defendants 3 and 4 are stated to have been 17. The Defendants 3 and 4 are stated to have been declared insolvents. The Official Assignee would declared insolvents. The Official Assignee would declared insolvents. The Official Assignee would therefore, take over the profits and/or assets which would therefore, take over the profits and/or assets which would therefore, take over the profits and/or assets which would come to the share of Defendants 3 and 4 for making come to the share of Defendants 3 and 4 for making come to the share of Defendants 3 and 4 for making legitimate payments to genuine creditors. Seeking to make legitimate payments to genuine creditors. Seeking to make legitimate payments to genuine creditors. Seeking to make payments as sought by the Plaintiff would deplate the payments as sought by the Plaintiff would deplate the payments as sought by the Plaintiff would deplate the funds of the Firm sought to be dissolved. The entire funds of the Firm sought to be dissolved. The entire funds of the Firm sought to be dissolved. The entire exercise is an abuse of the legal process. exercise is an abuse of the legal process. exercise is an abuse of the legal process. 18. It is seen that the parties are largely related 18. It is