Bombay High Court
Azizur Rehman Gulam vs M/S. Radio Restaurant on 30 November, 2023
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CHANDAN Date: 2023.12.01
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1 _905_IAL-33270.23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.33270 OF 2023
IN
APPEAL NO.18 OF 2023
IN
COMMERCIAL ARBITRATION PETITION NO.1268 OF 2019
1] Azizur Rehman Gulam
S/o Gulam Rasool and ors.
2] Jabir Gulam Rassol Sheru
S/o. Gulam Rasool Jamal : Appellants
(Org.Petitioners)
3] Shamim Husain Sharif Husain : The Proposed
Shaikh Necessary Party.
Vs.
M/s. Radio Restaurant & ors. : Respondents
(Org. Respondents)
-----
Mr. R. K. Sharma a/w Mr. Prince Kumar Upadhyay i/b Sharma
Syndicate Lexco. for the Appellant No.2/Applicant.
Mr. Karl Tamboly a/w Ms. Rujuta Patil i/b Negandhi Shah &
Himayatullah for Respondent No.1.
Mr. Subhash Jha and Mr. Harekrishna Mishra are present.
Mr. S. K. Dhekale, Court Receiver present.
-----
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : 30th NOVEMBER, 2023
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P.C. :
1 By the present Interim Application a review/recall of
the order dated 10th November 2023 passed by this Court in the
captioned Appeal has been sought for. At the outset we must
note that the present Interim Application is as unfortunate as it
is misconceived and malafide. The Interim Application is lacking
not only in substance but also in form.
2 This Court had vide its judgment and order dated 25 th
October 2023 dismissed the captioned Appeal filed under Section
37 of the Arbitration and Conciliation Act, 1996. The operative
part of the order reads thus, viz.
"26. Hence, for the reasons stated aforesaid, we pass the
following order, viz.
a. Appeal Dismissed.
b. The Court Receiver, High Court Bombay, to handover
possession of the said Restaurant Premises to the
Respondent No.1 forthwith.
AFTER PRONOUNCEMENT :-
At this stage, Mr. Jha, Learned Counsel appearing on
behalf of the Appellants, prays for stay of operation of
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this order for a period of eight weeks. Mr. Tamboly,
Learned Counsel appearing on behalf of Respondent
No.1, vehemently opposes the said prayer.
Considering the facts and circumstances of the
present case as noticed above, the prayer for stay of
operation of this order is rejected."
It is thus to be noted that the Court Receiver was to handover
possession of the Restaurant Premises to Respondent No. 1
forthwith.
3 It appears that the Appellants thereafter filed a
Special Leave Petition against the order dated 25th October 2023.
The Hon'ble Supreme Court on 6 th November 2023 was pleased
to dismiss the Special Leave Petition filed by the Appellants. On
9th November 2023, Mr. Mishra, the Learned Counsel then
appearing on behalf of the Appellants requested that time to
handover possession of the said Restaurant premises be
deferred till 30th November 2023 since there was a marriage in
the family of the Appellants and Respondent Nos. 3 to 8 (all of
whom admittedly are family members). It was thus that this
Court, considering the request of the then Learned Counsel for
the Appellants, recorded as follows :-
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"1. Mr. Krishna, learned counsel representing the
appellants states that there is a marriage in the family
of the appellants and the respondent nos. 3 to 8 on 19 th
November, 2023. He prays that time to hand over the
possession may be extended upto 30th November, 2023.
2. Stand over to 10th November, 2023. To be
listed High on Board.
3. Let an affidavit in the form of an undertaking
to the aforesaid effect be filed by the appellants and
respondent nos. 3 to 8."
On 10th November 2023 this Court passed the following order,
viz.
"P.C. :
By our previous order dated 9th November 2023, we had
stood over the matter to today after recording as follows :-
"1. Mr. Krishna, learned counsel representing the
appellants states that there is a marriage in the family
of the appellants and the respondent nos.3 to 8 on
19th November, 2023. He prays that time to hand over
the possession may be extended upto 30 th November,
2023.
2. Stand over to 10th November, 2023. To be listed
High on Board.
3. Let an affidavit in the form of an undertaking to the
aforesaid effect be filed by the appellants and
respondent nos.3 to 8."
2. Today, Mr. Hare Krishna Mishra, learned Counsel
appearing on behalf of the Appellants tenders an Affidavit of
Appellant No.1, which states on solemn affirmation as follows :-
"I state for myself and for and on behalf of the co-
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appellant as well as the Respondent Nos 3 to 8 that I
shall hand over the vacant and peaceful possession of
the property viz. Radio Restaurant, situated at 10,
Musafirkhana Road, Off, Carnac Road, Bombay 400 001
to the court receiver, High Court, Bombay on 30 th
November 2023."
3. Mr. Mishra assures the Court that the Affidavit has
been filed by the Appellant not only for himself and the Co-Appellant
but also on behalf of Respondent Nos.3 to 8, who are the brothers
and/or the family members of the brother of the Appellant. Mr.
Mishra assures the Court that the Appellants as also Respondent
Nos.3 to 8 will hand over possession of 'Radio Restaurant', situated
at 10, Musafirkhana Road, Off. Carnac Road, Bombay 400 001 to the
Court Receiver on 30th November 2023.
4. In view of the Affidavit filed and the statement made
by Mr. Mishra we allow the Court Receiver's Report in terms of
prayer clause (d) of the said Court Receiver's Report."
The present Interim Application seeks call/review of the
aforesaid order.
4 We must note that though the present Interim
Application arrays both the Appellants as parties and also one
Shamim Husain Sharif Husain Shaikh (Shamim Shaikh) as a
proposed necessary party, however, the Interim Application has
been affirmed only by Appellant No.2 and the Vakalatnama
issued in favour of the present Advocate on record has been
signed only by Appellant No.2. Thus there is no authority given
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by either Appellant No.1 or Shamim Shaikh to the present
Advocate on record. It is thus that the submissions of Mr.
Sharma are only on behalf of Appellant No.2. Mr. Sharma,
learned counsel appearing on behalf of Appellant No. 2 (though
stated as Petitioner in the body of the Interim Application)
submitted that the Affidavit filed by Appellant No.1 i.e. his
brother Azizur Rehman Gulam Rasool was invalid since Appellant
No. 2 had not authorized Appellant No. 1 to file the same on his
behalf. He equally submitted that Respondent No. 3 to 8 had
also not authorized Appellant No. 1 to file such Affidavit and
Undertaking. Basis this he submitted that such Affidavit could
not in any manner bind the Appellant No.2 nor would the same
bind Respondent Nos.3 to 8.
5 Mr. Sharma then invited our attention to the order
dated 10th November 2023 and pointed out that the order dated
9th November 2023 was not complied with. He submitted that
vide the order dated 9th November 2023 this Court had directed
that an Affidavit in the form of an undertaking was to be filed by
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the Appellants and Respondent Nos.3 to 8. He submitted that
the Affidavit filed by Appellant No.1 was, therefore, contrary to
the order dated 9th November 2023 and therefore on this ground
also, the order dated 10th November 2023 was required to be set
aside.
6 Mr. Sharma then took exception to the fact that Mr.
Mishra had appeared on 9th and 10th November 2023 and filed
the said Affidavit. He submitted that the Appellants' advocate on
record was Mr. Subhash Jha, and Mr. Mishra had appeared
'simply holding Advocate for the Advocate on record '. He thus
submitted that Mr. Mishra was merely a 'proxy counsel' on behalf
of Mr. Subhash Jha who was the Advocate on record. In support
of his contention that an appearance by `holding
Advocate/proxy counsel' was impermissible, he placed reliance
upon the following judgments, viz.
1] Surendra Mohan Arora Vs. HDFC Bank Ltd and
ors.1
2] Lutfar Rahaman Laskar Haji Kabadali Vs. The
1 (2014) 15 SCC 294
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State of W.B. and others2
3] Doki Adinarayana Subudhi and Brothers Vs. Doki
Surya Prakash Rao3
Basis the above, Mr. Sharma submitted that the order dated 10 th
November 2023 was required to be reviewed/recalled since Mr.
Mishra could not have even represented the Appellants.
7 Mr. Sharma then submitted that neither the
Appellants nor Respondent Nos. 3 to 8 were in possession of the
Restaurant Premises. He submitted that the Restaurant Premises
was infact in the possession of the proposed necessary party i.e.
Shamim Shaikh. He submitted that it was Shamim Shaikh who
had been running Radio Restaurant since last 23 years by virtue
of the Power of Attorney/s given to him by the Appellant/s. He
thus submitted that the order of 10th November 2023 would thus
affect the rights of Shamim Shaikh who was not even a party to
the Appeal, much less had given any undertaking and/or
assurance to vacate or handover possession of the Restaurant
premises on 30th November 2023 or even authorized Mr. Mishra
2 1954 AIR (Cal) 455.
3 1980 AIR (Ori) 110
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to appear. He thus submitted that the order dated 10 th
November 2023 was required to be reviewed/recalled on this
ground also.
8 Mr. Tamboly, learned counsel appearing on behalf of
Respondent No.1, opposed the said Application and pointed out
that possession of the said Restaurant Premises was with the
Court Receiver since the year 2006. He pointed out that the
order dated 12th September 2006 passed in Suit No.1668 of
2006 was an order passed with the consent of inter alia the
Appellants. He pointed out that it was by this order that the
Appellants had been appointed as agents of the Court Receiver
to run the business of Radio Restaurant. He submitted that it
was neither the contention of the Appellants at that time that
the said Shamim Shaikh was in possession of the said
Restaurant Premises nor did the said Shamim Shaikh raised any
such contention either at the time of appointment of Court
Receiver or at any time thereafter.
9 More importantly, Mr. Tamboly then invited our
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attention to the undertaking dated 12th October 2006 given by
the Appellants to the Court Receiver. He pointed out that the
Appellants had specifically undertaken not to part with
possession of the said Restaurant Premises and that they shall
hand over the property to the Court Receiver as and when called
upon to do so. He pointed out that the Appellants had infact
throughout the arbitration proceedings as also during the course
of the Appeal never contended that any third party was in
possession of the said Restaurant Premises. He also pointed out
that the royalty as an agent of the Court Receiver was always
paid by the Appellants and not anybody else.
10 Mr. Tamboly then submitted that even after the final
order and judgment of this Court dated 25th October 2023 was
passed, the Court Receiver had visited the said Restaurant
Premises on 30th October 2023 and had not found any person,
apart from the Appellants, in possession of the same. Basis this,
he submitted that the contention that the third party viz.
Shamim Shaikh was in possession of the said Restaurant
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Premises was an absolutely false and dishonest contention to the
knowledge of the Appellants.
11 Mr. Tamboly then submitted that the contention of
Appellant No.2 that he had not authorized Appellant No.1 to file
an Affidavit/Undertaking to hand over possession of the said
Restaurant Premises on 30th November 2023 was also untenable.
He pointed out that Appellant No.1 had infact earlier filed an
Application on behalf of himself as also on behalf of Appellant
No.2 being Interim Application (L) No.8941 of 2021 seeking
relaxation in payment of royalty amount to Court Receiver in
view of Covid-19 pandemic.
12 Mr. Tamboly then submitted that the present Interim
Application proceeded on an erroneous basis that the possession
of the said Restaurant Premises had to be handed over to
Respondent No.1 on the basis of the order dated 10th November
2023. He pointed out that possession was to be handed over by
the Court Receiver in terms of the final judgement and order
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dated 25th October 2023. He pointed out that the order of 10 th
November 2023 was just an indulgence shown by this Court
considering the request of the Appellants to postpone handing
over of possession in view of the fact that there was a wedding
in the family of the Appellants. He submitted that therefore even
assuming the order dated 10th November 2023 was vacated
and/or recalled, the earlier directions to the Court Receiver to
hand over possession to Respondent No.1 would still stand. He
therefore submitted that the present Interim Application for
review/recall of the order dated 10th November 2023 was
thoroughly misconceived and was nothing but an attempt to take
advantage of the indulgence of this Court showed earlier. He
pointed out that there was no error apparent on the face of the
order dated 10th November 2023 and hence the present Interim
Application ought to be dismissed.
13 Mr. Jha, learned counsel, who had appeared on behalf
of the Appellants at the time of hearing of the Appeal, was
present in Court. He submitted that the stand now taken by
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Appellant No.2 was a false stand. He submitted that he had
received instructions to appear from both Appellant No.1 and
Appellant No.2 at the relevant time. He submitted that if
necessary, he had CCTV footage which showed both Appellant
No.1 and 2 visiting his office for that purpose. Mr. Jha submitted
that Mr. Mishra who was his junior had informed him what had
fallen from the Court on 9th November 2023, basis which it was
Mr. Jha who had drafted the Affidavit which was filed by
Appellant No. 1 basis the instructions received from the
Appellants. He, therefore, submitted that it was not correct for
Appellant No.2 to now raise the contention that Appellant No.1
was not authorized to file the said Affidavit on his behalf or to
contend that Mr. Mishra was merely a holding Advocate. Mr. Jha
thus strongly disputed the aspersions that were now sought to
cast by Appellant No.2 and the manner in which Appellant No.2
had done so.
14 Mr. Mishra, learned counsel who appeared on behalf
of the Appellants on 9th November 2023 and 10 th November
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2023, was present in Court at our request. He pointed out that
he had acted as per the instructions of his Senior, Mr. Subhash
Jha. He submitted that the stand now taken in the present
Interim Application was a false and untenable stand since not
only were both the Appellants present in Court on 9 th and 10th
November 2023, but that Shamim Shaikh the proposed third
party was also present in Court on those dates and were thus
fully aware of what transpired. Mr. Tamboly and his instructing
advocate also confirmed this fact.
15 We have heard Mr. Sharma, considered the case law
relied upon by him, and have also heard Mr. Tamboly, Mr. Jha
and Mr. Mishra and find that the Interim Application deserves to
be dismissed with costs for the following reasons, viz.
A First, the entire premise of the Interim Application, is
that (i) neither Appellant No. 2 nor Respondent Nos 3
to 8 had authorized Appellant No. 1 to file the
Affidavit dated 10th November 2023 and (ii) a third
party, namely Shamim Shaikh is the party who is in
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possession of the said Restaurant premises. Curiously
however, the present Interim Application has been
affirmed only by Appellant No. 2 as also the
Vakalatnama granted in favour of the present
advocate is only by Appellant No. 2. Thus, there is no
authority given by either Respondent Nos. 3 to 8 or
Shamim Shaikh to the present advocate and the
present Interim Application is filed at the instance of
Appellant No. 2 alone.
B. Second, the Interim Application in terms states that
neither the Appellants nor Respondent No. 3 to 8 are
in possession of the said Restaurant Premises, and
that it is Shamim Shaikh who is in possession of the
same. It is to be noted here that if the Appellants are
or not in possession of the said Restaurant Premises,
then the Appellants cannot in any manner be
aggrieved by the order dated 10th November 2023.
More importantly, and what makes the malafides of
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the Appellant No. 2 clear is the fact that Shamim
Shaikh, the person who the Appellant No.2 claims is
in possession, has not so much as even approached
this Court. There is not a whisper in the Interim
Application as to why the Appellant No. 2 who claims
not to be in possession of the said Restaurant
Premises would file such an application to protect the
interest of a third party who does not appear to be in
the least vexed by the said order.
C. Third, the Court Receiver has been appointed as
Receiver of the said Restaurant since the year 2006.
Royalty has been paid by the Appellants to the Court
Receiver, undertakings have been submitted to the
Court Receiver in the usual terms by the Appellants.
Not once during this entire period had Shamim Shaikh
claimed to be in possession of the said Restaurant
premises. The Court Receivers reports also do not
mention that anyone other than the Appellants are in
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possession of the said Restaurant premises. Even
assuming that Shamim Shaikh is infact in possession,
under the Powers of Attorney now relied upon for the
first time by Appellant No. 2, he is merely an agent of
the Appellants and nothing more. However, what
really is crucial and highlights the malafides of the
Appellant No.2 is that this Power of Attorney/s have
been produced for the first time now by the Appellant
No.2.
D. Fourth, Mr. Jha has stated that instructions were
given by both Appellants to him and more
importantly, Mr. Mishra has informed us that not only
the Appellants, but also Shamim Shaikh were all
present in Court on 9th and 10th November 2023 and
also when the Appeal was being argued. Hence the
contention that Appellant No. 2 was unaware of what
transpired in Court on 9 th and 10th November 2023
does not arise. We must note here that both Mr. Jha
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and Mr. Mishra appeared instructed by M/s. Law
Global, thus the Advocate on Record was M/s Law
Global and not Mr. Jha. The Appellant No. 2 has not
suggested much less disputed that he had not
appointed Law Global to act on his behalf. Thus, the
contention of Mr. Mishra lacking any authority to
appear does not arise.
E. Fifth, even if the order dated 10 th November 2023 is
recalled on the basis that Appellant No. 1 lacked the
authority to file such an Affidavit on behalf Appellant
No. 2, the same would infact make no difference at all
since the Court Receiver would still have to act in
terms of the final judgement and order dated 25 th
October, 2023 and forthwith handover possession of
the Restaurant Premises to Respondent No. 1. All that
was done by the order dated 10th November 2023 was
that time to handover possession was extended upto
today. Appellant No. 2 when appointed as agent of
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the Court Receiver has admittedly filed an
undertaking inter alia to hand over the Restaurant
premises as and when called upon. The Appellant thus
must act in terms of the said undertaking.
16 Thus from the above it is manifestly clear that the
Appellant No. 2 has filed what we have already termed as a
most unfortunate, misconceived and malafide Application. We
say unfortunate because the conduct of Appellant No. 2 has
been to subvert and pollute the course of justice. The same has
consequently resulted in a gross waste of precious judicial time.
It is for this reason that an order of costs must necessarily
follow. Thus, the following order, viz.
i. The Interim Application is rejected.
ii. Court Receiver to act in terms of the order dated 25 th
October 2023 read with the order dated 10 th November
2023 and handover possession of the Restaurant
Premises to Respondent No. 1 forthwith.
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iii. Appellant No.2 to pay costs of Rs. 5,00,000/- (Rupees
Five Lakhs only) within a period of eight weeks from
today to PM Cares. The account details are as under:-
Name of the Account PM CARES
Account Number 60355358964
IFSC MAHB0001160
Branch UPSC - New Delhi
17 Appellant No.2 shall produce proof of deposit of costs
immediately after expiry of the period of eight weeks from today
with the Prothonotary and Senior Master of this Court, failing
which the costs shall be recovered as arrears of land revenue.
18 List the matter on 25th January, 2024 for compliance.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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