IN THE HIGH Court OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 9411 OF 2020
IN
EXECUTION APPLICATION (L) NO. 2329 OF 2018
Akhtarbhai Abdullabhai ... Applicant/Decree Holders
(Since deceased )
Through Legal Heirs
In the matter between
Mohammed Hussain Abdullabhai ... Respondents/Org. Claimants
(Since deceased)
Through Legal Heirs
and
Taherbhai Abdullabhai &Ors. ... Respondents/Judg. Debtors
Mr. Sean Wassoodew a/w. Mr. Vijaya Ingule for the Applicant-Decree Holder.
Mr. Yatin R. Shah a/w. Ms. Harsha Y. Shah and Mr. Shivam B for Respondent
no. 1(a).
Mr. Prashant Pandey i/b. W3Legal LLP a/w. Mr. Aiqan Memon and Ms.
Manpreet Putiani for Respondent / Original Claimant no. 1(b) to (d).
CORAM : A. K. MENON, J.
DATED : 5th OCTOBER, 2021.
P.C. :
1. By this interim application the applicant seeks an order directing RAJESHWARI RAMESH respondents-judgment debtors who are original claimant in the interim PILLAI Digitally signed by RAJESHWARI RAMESH PILLAI 1/8 Date: 2021.10.07 15-ial-9411-2020-exal-2329-2018.odt 17:09:51 +0530 rrpillai application to hand over peaceful possession of tenement no. 8 of Abdulla Mansion no. 1 to the Court Receiver and to hand over joint possession of the same to the applicants and respondents-judgment debtor and for payment of mesne profit of Rs.75,000/- per month from October, 2017 till actual possession of tenement no. 8 is taken. The application is being opposed by respondent no. 1(a) Zulfikar Mohammedhussain Kagalwala.
2. Mr. Wassoodew points out the fact that on 13 th June, 2002 the Sole Arbitrator passed an award in terms of consent terms marked as Annexure 3 to the Award. Mr. Wassoodew has contended that the award has now attained finality, a fact that is not disputed by any of the parties. He submits and that the Receiver is appointed in Execution of the order dated 26 th February, 2020 in Suit No. 3919 of 1995. It is now necessary to have the Receiver take actual possession of tenement no. 8 which is being occupied by respondent no. 1(a) without any security and royalty. It was the father- original respondent no. 1 who was entitled to remain in occupation and that too as an agent of the Court Receiver, pursuant to an order passed in Appeal No. 935 of 2003 on 11th November, 2003 by which a Division Bench of this Court permitted the original respondent no. 1 and his son [present respondent no. 1(a)] to remain in possession as agent of the Receiver without the security and royalty. At that point in time the award had not attained finality. In view of the challenge to the award having failed, the award has now attained finality.
2/8 15-ial-9411-2020-exal-2329-2018.odt rrpillai
3. Mr. Wassoodew submits that the applicants are entitled to reliefs as prayed. The order of the Division Bench is dated 11 th November, 2003 and upon challenges to the award being repelled, the consent award dated 13 th June, 2002 is executable and must be given effect to. He submits that upon demise of original respondent, respondent no. 1(a) has entered upon the premises and is now in possession without any authority/security. He therefore submits he is also entitled to mesne profits from date the award attained finality.
4. As far as the second prayer is concerned I find no justification in the prayer being sought and indeed no submission has been advanced on that basis in this Court. Hence I find no reason to grant relief in terms of prayer clause (b).
5. As far as prayer clause (a) is concerned I have called upon Mr. Shah to make his submission in opposition. As far as the other respondents are concerned respondent nos. 1(b) to 1(d) they are supporting the applicant and hence it is only respondent no. 1(a) represented by Mr. Shah who is opposing the application.
6. Mr. Shah has in his defence contended that the case sought to be made out by the applicant is incorrect. Firstly he submits that there is no bifurcation of the property and hence it is not proper for the applicant to seek relief in terms of prayer clause (a). He has invited my attention to the 3/8 15-ial-9411-2020-exal-2329-2018.odt rrpillai Execution Application and column J thereof in support of his contention. He also points out that since the Execution Application seeks a partition deed to be drawn and executed by the parties and for the registrar of this Court to execute such a deed in the event of default by the respondent, there is no occasion to seek the relief now sought and the parties are jointly in possession of the entire Abdulla Mansion no. 1 in the absence of any bifurcation. Mr. Shah submits that there is no occasion to grant relief.
7. The next defence to the application is that the suit premises was always in the occupation of respondent no. 1(a) since the order of the Division Bench dated 11th November, 2003 recognised the fact that the father and respondent no. 1(a) were in possession. They were allowed to continue as agent of the Receiver without any security or royalty. . Therefore by the present application the applicants cannot disturb the possession of respondent no. 1(a). He then submits that tenement no. 8 was subject matter of the suit in the Court of Small Causes at Mumbai wherein the Landlords of Abdulla Mansion No. 1 which includes all the members of the family and were all before the Arbitral Tribunal had filed a suit for eviction of the tenant of tenement no. 8. That suit had been decreed and the tenant was evicted.
8. It is contended that the basis of the suit was bonafide requirement for the purposes of enabling respondent no. 1(a), son of original respondent no. 1 to start his practice since he was then aspiring to be a Chartered 4/8 15-ial-9411-2020-exal-2329-2018.odt rrpillai Accountant. That being the position the family members, all signatories to the consent terms were in support of the plaintiff in that suit and that clearly is a fact that must be held against the applicant. Today since the applicant- predecessor in title are deemed to have supported the original respondent no. 1 in that suit, having done so, it was not an option today to seek possession of tenement no. 8 since respondent no. 1(a) is continuing in possession. Mr. Shah seeks to persuade me to hold that this possession be protected. To a query from the Court Mr. Shah submits that respondent no. 1(a) is carrying on business as retailer / distributors of surgical equipment and not as Chartered Accountant. It appears that original respondent no. 1 was in that business. That this business is now continuing and ought not to be disturbed. He therefore submits that he is exclusively entitled to tenement no. 8 and there is no occasion to grant any relief in the present application.
9. Mr. Shah has then invited my attention to the Execution Application and submits that the property Abdulla Mansion no. 1 is not subject matter of the application at all and therefore no relief should be granted. Mr. Shah has lastly pointed out that only shares of individual parties in the joint properties has been set out as part of the award and that tabulated format does not indicate that the predecessors and the current applicants namely Akhtarbhai Abdullabhai had any share in the property described as Abdulla Mansion no.
1. It is therefore submitted that there is no occasion to grant relief. 5/8 15-ial-9411-2020-exal-2329-2018.odt rrpillai
10. Having heard the learned counsel for the parties I am of the view that the application is liable to be allowed. Mr. Shah's contention that he has been in occupation of the premises pursuant to order of the Division Bench and is entitled to continue in occupation cannot today be countenanced in view of the fact that the order of the Division Bench was passed in 11 th November, 2003. Pending the challenge to the award, learned single Judge of this Court while disposing Notice of Motion no. 2176 of 2003 in Arbitration Petition no. 354 of 2003 had occasion to consider the fact of possession of tenement no.
8. This very submission about the proceeding in the Small Causes Court has been dealt with in that order and the fact that the Receiver is appointed was also observed in that order. Paragraph 11 observed that after the decree was passed by the Small Causes Court the original respondent no. 1 was attempting to create third party rights in the property by inducting his son as tenant and it was necessary that this property shall also handed over to the respondent. The request of the counsel for respondent no. 1 to stay that order was rejected.
11. Respondent no. 1 had even then claimed that his son had become lawful tenant and there is a likelihood of creating third party right. That request for protection was also rejected. It is a challenge to that order that was heard and disposed in Appeal No. 935 of 2003 and it is under those circumstances that respondent no. 1(a) was permitted to continue as agent of the Receiver. Respondent no. 1(a) being son has continued by virtue of these 6/8 15-ial-9411-2020-exal-2329-2018.odt rrpillai orders are now of no assistance to Mr. Shah since the award has been passed by consent. Consensual in the Arbitral reference the parties had agreed to the shares being specified and the shares to the applicants branch of the family had been agreed at 25% and that of the respondent at 75%. Respondent no. 1(a) formed part of the 75% share holders. However there is no demarcation of the shares and no division by metes and bounds and this aspect may be considered in execution when and if the reliefs of executing the partition deed are to be considered. It is indisputable that the Receiver is entitled to possession today. The case of respondent no.1(a) that he is entitled to remain in exclusive possession as agent of the Receiver without paying royalty and without providing security cannot be accepted. On that count the applicants are liable to succeed. Moreso since the respondents agree that the building was in joint possession of the applicant and others.
12. In the course of submissions I had occasion to call upon respondent no. 1(a) and the applicant to submit to an order for the Receiver to invite offers for conducting the business so that profits and income generated from such conducting of the business can be shared in the ratio of 75% and 25% in the interregnum. However Mr. Shah on instructions states that his clients are not agreeable to submit to such an attempt. In these circumstances there is no occasion to deny the relief sought. Receiver is bound to take possession and accordingly I pass the following order : 7/8 15-ial-9411-2020-exal-2329-2018.odt rrpillai
(i) Interim Application is allowed in terms of prayer clause (a) but with clarification that for the present it shall not be handed over to be joint possession of the applicant and respondent no. 1(a).
(ii) The Receiver shall take actual physical possession, call for bids from both sides in an attempt to ensure that the property is safeguarded and the business is continued. Joint possession will only frustrate conduct of the business in the premises. Receiver shall according retain possession and invite bids at which the applicants and respondent shall be entitled to participate.
(iii) The request in prayer clause (b) is rejected.
(iv) At this stage the Receiver who is present states that two reports are pending being Report No. 2007 of 2021 and Report no. 29 of 2021. These are both reports of compliance. Accordingly compliance is noted. Both the reports are disposed.
(v) Interim Application is disposed in the above terms.
Mr. Shah at this stage seeks stay of the operation of this order. The operation of this order shall be stayed for three weeks.
(A. K. MENON, J.) 8/8 15-ial-9411-2020-exal-2329-2018.odt rrpillai