Akhtarbhai Abdullabhai Since ... vs Mohammed Hussain Abdullabhai ...
2021 Latest Caselaw 14459 Bom

                                           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

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.

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

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

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.

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

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 :

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(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.)

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