Bombay High Court
Asha Rameshkumar Kanodia And Ors vs Madhu Ashok Kanodia And Ors on 4 January, 2021
Bench: C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 12499 OF 2019
Asha Rameshkumar Kanodia and Ors. ..Petitioners
Vs.
Madhu Ashok Kanodia and Ors. ..Respondents
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Mr. Deepak Chitnis i/b. Deepak Chitnis - Chiparikar & Co., for the
Petitioners.
Mr. Ashok Saraogi a/w. Mr. Sushil Upadhyay, for the Respondent
Nos.1 to 11.
Mr. Pradeep Thorat a/w. Nitesh Gala, for Respondent No.12.
Mr. D. N. Kher, Court Receiver a/w. Mrs. S. V. Golatkar, Master
(Admn.) Court Receiver present.
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CORAM : C.V. BHADANG, J.
RESERVED ON: 18th DECEMBER, 2020
PRONOUNCED ON: 4th JANUARY, 2021
JUDGMENT :
. Rule. Rule made returnable forthwith. Mr. Ashok Saraogi,
learned counsel for the Respondent Nos.1 to 11 and Mr. Pradeep
Thorat for Respondent No.12 waives service. Heard finally by
consent of the parties.
2. The challenge in this petition is to the order dated
17/12/2016 passed by the learned City Civil Court, Greater Mumbai
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in Court Receivers report No.162/2016 in S.C. Suit No.9168/1992
(H.C. Suit No.608/1992). By the impugned order, the learned City
Civil Court has refused to pass any order in respect of the said report
of the Court Receiver, holding that any order, if passed, shall be
rendered without jurisdiction.
3. The brief facts necessary for the disposal of the petition may
be stated thus-
(i) The petitioners are the original plaintiffs. Petitioners
filed Suit No.608/1992 before this Court, against the respondents
for administration of the estate of late Shri. Mahavirprasad Kanodia.
The subject matter of the suit included several properties part of
which were situated at Bhivani at Haryana. Presently, we are only
concerned with the old flat No.1/E/40 in New Sarvottam Co-
Operative Housing Society Ltd, Irla Bridge, S. V. Road, Andheri
(West), Mumbai which was initially one of the properties which was
subject matter of the suit.
(ii) It appears that the suit was decreed exparte on
17/12/1997. A Notice of Motion was taken out by the defendants
to set aside the exparte decree, which was dismissed by this Court
on 13/8/1999. Feeling aggrieved, the original defendants
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challenged the same before the Division Bench of this Court in
Appeal (Lodging) No.843/1999. Both the parties filed Consent
Terms / Minutes of Order, before the Division Bench and in
pursuance thereof, the appeal was disposed of on 2/3/2000. In
terms of the agreed terms, the parties had decided to delete the
aforesaid flat from the array of the suit property and the suit relating
to rest of the properties was remitted back to the learned Single
Judge for trial, after setting aside the exparte decree.
(iii) For the present purpose, Clause 1 to 3 of the Consent
Terms are relevant, which read thus-
1. The Decree dated 17th December 1997 passed
by Mr. Justice V. R. Datar is set aside. The suit is
remanded to the Trial Court (except in respect of Flat
No.1/E-40, New Sarvottam Co-op. Housing Society
Ltd., Irla Bridge, S. V. Road, Andheri (West), Bombay
400 058, for being decided on merits, afresh. The
claim in respect of the said flat is deleted from the
arena of the suit. The Appellants agree to file written
statement within four weeks from today. The
Appellant are at liberty to take inspection of the
documents tendered by the Respondents and lying in
Court at the hearing of the Suit on 17.12.1997 after
giving notice to the Advocate of the Respondents.
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2. The Appellants admits that Respondents jointly
have 19th share in flat No.1/E-40 situated at
Sarvottam Co-op. Housing Society Ltd., Irla Bridge, S.
V. Road, Andheri (West), Mumbai 400 058.
3. The Court Receiver, High Court, Bombay do sell
the suit flat referred above by private treaty to the
highest bidder. Appellants and Respondents are at
liberty to bring buyers. The Court Receiver do
complete the sale within six months from today. In
the event of the sale not being completed within a
period of six months, by private treaty, the Court
Receiver do sell the suit flat by public auction. The
sale shall be subject to confirmation of this Hon'ble
Court. The Court Receiver do deposit the sale
proceeds of the suit flat with Prothonotary and Senior
Master upon sale of the flat. The Court Receiver to
sale the flat on vacant possession basis. The Court
Receiver shall take the steps to complete the sale of
the said flat expeditiously. Charges of the Court
Receiver shall be borne by the Appellants and the
Respondents in 8/9 : 1/9 ratio. Deposits if any
demanded by the Court Receiver shall also be made
by the parties in the same ratio.
(iv) In pursuance of the said Consent Terms and the order
passed in the appeal, the Court Receiver took possession of the said
flat on 14/10/2000. It so happened that the building where the suit
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flat was situated was declared as dilapidated and the respondent
M/s. Kumar Builders (now M/s. Kumar Builder Project Pune Pvt.
Ltd.), had entered into an agreement with the society for
development of the entire property. This was so informed to the
Court Receiver in a meeting held on 25/1/2008.
(v) The building has been reconstructed and in the new
building the said old flat No.1/E/40 has been renumbered as flat
No.704-A. It may be mentioned that the said flat has also been
taken into possession by the Court Receiver on 12/3/2014.
However, for want of the occupation certificate, from the Municipal
Corporation, the further part of the Consent Terms regarding the
sale of the flat by private treaty or public auction could not be
effected.
(vi) In the meantime and in view of the enlargement of the
jurisdiction, Suit No.608/1992 has been transferred to the City Civil
Court where it is registered as Suit No.9168/1992.
(vii) The record further indicates that the Court Receiver had
earlier filed report No.235/2008 seeking certain directions which
was disposed of by this Court on 25/7/2008. This Court directed
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that the arrears of compensation in respect of the said flat, for
alternate accommodation be deposited with the Court Receiver at
the same rate at which such compensation was paid to the other
members of the Society. The arrears were directed to be paid within
four weeks and the Builder was further directed to continue to
deposit the future compensation in this Court. According to the
Court Receiver, the Builder has deposited compensation till March
2012 alongwith shifting charges etc., totaling to Rs.16,49,005/-.
However, the Builder failed to deposit further rent from April 2012.
The Court Receiver filed the present report No.162/2016 seeking
the following directions.
a) What steps the Court Receiver should take in
this matter as the occupation certificate is not
obtained by M/s. Kumar Builder from MCGM and in
absence of occupation certificate the suit flat cannot
be sold as per Orders passed by the Division Bench of
the Hon'ble High Court.
b) M/s. Kumar Builder may be directed to deposit
arrears of rent from April 2012 to March 2016
amounting to Rs.16,27,200/- alongwith penalty and
interest as may be fixed by the Hon'ble Court.
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c) That the cost of and incidental to this report be
fixed at Rs.3,000/- and the plaintiff be directed to
deposit the same in the office of Court Receiver."
d) Any other directions that this Hon'ble Court
may deem fit and proper.
4. The City Civil Court has refused to pass any order on the
Court Receiver's report, on the ground that Flat No.1/E/40 (new
Flat No.704-A) has been deleted from the 'arena of the suit' and
therefore, said flat is not subject matter of the suit which is pending
before the City Civil Court. The City Civil Court has found that the
plaintiffs have not taken out any final decree proceedings and
therefore, any order that may be passed on the Court Receivers
report, would be without jurisdiction.
5. Feeling aggrieved, the petitioners had approached this Court
in A.O. No.605/2018 which was converted into the Writ Petition.
6. I have heard Mr. Chitnis, the learned counsel for the
petitioners, Mr. Sarogi, learned counsel for the respondent Nos.1 to
11 and Mr. Thorat, learned counsel for the respondent No.12 i.e.
M/s. Kumar Builders. Perused record.
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7. The learned counsel for the petitioners pointed out that the
Flat No.1/E/40 was very much part of the consent terms although it
was deleted from the property which was subject matter of the suit.
It is submitted that there were several orders which are passed by
this Court on Court Receiver's report giving directions and in
particular the learned counsel has referred to the order dated
25/7/2008 passed on Court Receiver's report No.235/2008 in order
to submit that the Builder was directed to pay arrears of
compensation for alternate accommodation at the same rate as paid
to other members being deposited before the Court Receiver. It is
thus submitted that the City Civil Court was in error in refusing to
pass any order on Court Receiver's report on an erroneous
assumption that any such order would be without jurisdiction.
8. The learned counsel for the contesting respondent No.12 has
submitted that the respondent No.12 is not concerned with the
administration suit as originally instituted. It is submitted that the
Builder came into picture only when the building was declared
dilapidated and the Society had decided to go for re-development. It
is submitted that otherwise the Builder is not at all concerned with
the private dispute.
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9. It is submitted that by virtue of the Consent Terms, the old
Flat No.1/E/40 (new Flat No.704-A) was deleted and is no longer
the subject matter of dispute in the suit which is now pending before
the City Civil Court. He therefore submitted that the City Civil Court
is right in refusing to pass any order on the Court Receiver's report
which is essentially seeking directions in respect of the said flat.
10. I have considered the rival circumstances and the submissions
made. It is true that Flat No.1/E/40 was deleted from the arena of
the suit. However, at the same time, it is necessary to note that the
said flat is very much the part of the "agreed minutes of the order"
dated 2/3/2000. The said minutes of the order have been acted
upon by the Division Bench of this Court in Appeal (Lodging)
No.843/1999 under which the Court Receiver was supposed to take
possession of the said flat, sell it by private treaty and in the event of
failure thereof by public auction, subject to the confirmation by this
Court. The Court Receiver has also been entrusted with the
responsibility to distribute the sale proceeds in the ratio as indicated
in the Consent Terms. The record also shows that the Court
Receiver had taken possession of the old flat No.1/E/40 as well as
new Flat No.704-A after redevelopment. There are several instances
where the Court Receiver had sought directions from this Court from
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time to time. In particular, a reference may be made, in this regard,
to the order dated 25/7/2008 on Court Receivers report
No.235/2008 whereby this Court had directed the Builder to deposit
the compensation in respect of the said flat at the same rate as paid
to the other members. Thus, it can clearly be seen that the said flat
continues to be in the custody / possession of the Court Receiver
and under the directions of the Court.
11. It is well settled that in a given case, property which is not
subject matter of the suit can form part of the Consent Terms as may
be recorded in the suit. Here, is a case where notwithstanding the
fact that the old flat No.1/E/40 was a part of the suit property
initially, and although was deleted from the suit property, continues
to be the part of the Consent Terms. This was evidently in view of
the fact that in so far as the said flat is concerned by virtue of Clause
2, the original defendants, the appellants in Appeal (Lodging)
No.843/1999 had admitted that the respondents therein (the
original plaintiffs) jointly had 1/9th share in Flat No.1/E/40. It was
in these circumstances that the said flat was no longer considered to
be necessary being part of the disputed property. However, at the
same time, as indicated in Clause 3, the flat has been placed in the
possession of the Court Receiver and there are directions for sale of
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the said flat by private treaty or public auction and distribution of
the proceeds thereof as indicated in Clause 3. Admittedly, the
Builder has been unable to obtain occupancy certificate in respect of
the said building, as a result of which, according to Court Receiver,
the later part of the Consent Terms about sale of the said flat and
the distribution of the sale proceeds could not materialize. Precisely,
in the context of this situation, the Court Receiver has sought the
directions. In the given circumstances, in my considered view, the
City Civil Court was clearly in error in refusing to pass order on the
Court Receivers report. It is not known whether a formal
preliminary decree in respect of the Flat No.1/E/40 is based on the
Consent Terms has been passed or not.
12. A perusal of the Court Receiver's report would also indicate
that the respondent No.12 had for all practical purposes abided by
the order passed in Court Receiver's report No.235/2008 till March
2012. However, according to the Court Receiver, there is non
compliance on and from April 2012. Thus, it is for the City Civil
Court to pass appropriate orders on the Court Receiver's report.
14. For the aforesaid reasons, in my considered view, the
impugned order cannot be sustained. In the result, the following
order is passed.
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ORDER
1. The petition is partly allowed.
2. The impugned order is hereby set aside.
3. The Court Receiver's report No. 162/2016 is
restored back to the file of City Civil Court at Bombay
for passing necessary orders as may be deemed, just
and necessary and in accordance with the law.
4. In the circumstances, the parties to bear their
own costs.
C.V. BHADANG, J.
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