Bombay High Court
Shanti Devi Widow Of Manoharlal ... vs Kewalram Mulchand And Ors on 9 August, 2024
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2024:BHC-OS:12038 903 CRR 307.24 IN S 372.1967.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COURT RECEIVER'S REPORT NO.307 OF 2024
IN
SUIT NO.372 OF 1967
Shantidevi widow of Manoharlal Chanderbhan ...Plaintiff
Versus
Kewalram Mulchand & Ors. ...Respondents
WITH
CHAMBER SUMMONS NO. 442 OF 2019
IN
SUIT NO. 372 OF 1967
Shantidevi widow of Manoharlal Chanderbhan ...Plaintiff
Versus
Kewalram Mulchand & Ors. ...Respondents
Mr. Rohan Sawant, a/w Ms. Akanksha Patil i/b. M/s. Narayanan &
Narayanan, for the Applicant No.1(a) to 1(c), 2, 2(c) to 2(e) and
3.
Mr. Akshay U. Bobade with Mr. Bharat Punekar, Advocates, for the
Respondent No.6D.
Mr. Jitendra Ramugade a/w. Ms. P. G. Chandeliya, Advocates, for
the Respondent Nos.7A and 7B.
Mr. Sushil Sharma for Applicant in IA 1536 of 2024.
Mr. Vikramjeet Garewal i/b. Parvathy Iyer, Advocates, for the
Respondent Nos.1, 2(a) to 2(c), 5(a) to 5(d).
Mr. Vipul Makwana i/by Mr. Yatin R. Shah Advocates, for the
Respondent No.4.
Mr. S.K. Dhekale, Court Receiver a/w NC Pawar, OSD, CR Office
present.
CORAM: MADHAV J. JAMDAR, J.
DATED : 9th AUGUST 2024
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P. C.:
1. The Court Receiver has filed Report No.307 of 2024 seeking
following directions:
"(a) The Hon'ble Court may pleased to pass
necessary Order as to whom physical possession of
Shop No.299/301,Ground Floor, Kharekh Bazar,
Mumbai - 400 009 be handed over by the Court
Receiver because of death of Defendant Nos. 1 to 3;
(b) The Hon'ble Court may pleased to pass
necessary Order as to whom the books of accounts
and One trunk be handed over by the Court
Receiver because of death of Defendant Nos. 1 to 3.
(c) The Hon'ble Court may pass necessary directions
considering the death of Defendant Nos. 1 to 3 as to
whom balance amount alongwith accrued interest
lying with the Court Receiver be paid after deducing
costs, charges and expenses of the Court Receiver
and Professional fees of Dhagat & Co.
(d) This Hon'ble Court be pleased to dispose off
Court Receiver Report No.186 of 2021;;
(e) The cost of this Report be awarded in the sum of
Rs.5,000/- (Rupees Five Thousand Only) and the
same may be allowed to be debited from amount
lying in the suit account;
(f) Any other and further directions as this Hon'ble
Court may deems fit and proper."
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903 CRR 307.24 IN S 372.1967.DOC
2. In the Court Receiver's Report, the Court Receiver has
mentioned about the chequered history of the litigation and also
the present position. Some of the relevant facts are as follows:
(a) This Court appointed a Court Receiver by Order dated
28th June 1967 as the ad-interim Receiver and
thereafter confirmed the said appointment by fresh
Order dated 5th October 1967 appointing Court
Receiver as Receiver of all assets, Books of Accounts
and other documents of the firm-Mulchand
Chanderbhan.
(b) The Court Receiver took physical possession of the
Shop No.299/301, Ground Floor, Narshinatha Street
(Kharekh Bazar), Masjid Bunder, Mumbai - 400 009.
(c) This Court by Order dated 14th February 1984,
directed the Court Receiver to handover possession of
all the assets to the Defendant Nos. 1 to 3 and
discharged the Court Receiver. The said Order was
challenged by way of an Appeal No.760 of 1984. The
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903 CRR 307.24 IN S 372.1967.DOC
said Appeal was dismissed by a Division Bench by
Order dated 11th August 1988.
(d) The Plaintiff impugned the Order of dismissal of
Appeal dated 11th August 1988 in the Supreme Court
by way of Special Leave Petition (SLP) No.16474 of
1988, which in turn was also dismissed on 13th
February 1989.
(e) The Plaintiff filed Review Petition No.368 of 1989
seeking a review of said Order dated 13 th February
1989. This Review Petition was also dismissed by the
Supreme Court on 9th August 1989.
(f) Advocates for Defendant No.2(b) addressed a letter
dated 3rd January 2019 to the Court Receiver
informing him inter alia about the death of Defendant
Nos.1 to 3 and also informed names of their respective
legal heirs and further requesting the Court Receiver
to handover possession of suit property to the said
heirs.
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(g) The Court Receiver in the Court Receiver's Report
No.186 of 2021 submitted that despite directions to
handover suit property to Defendant Nos.1 to 3 after
being discharged, the Court Receiver could not
complete the said handover as Defendant Nos.1 to 3
had died and their legal heirs were not on record.
Thereafter, the present Court Receiver Report No. 307
of 2024 was filed, which is a comprehensive Report
seeking certain directions from this Court. By the
Order dated 26th July 2024, the previous report being
Court Receiver Report No.186 of 2021 was disposed of
in view of filing the present report.
3. Mr. Rohan Sawant, learned Counsel appearing for some of
the heirs of Defendant Nos.1 to 3 has pointed out decree dated 14 th
February 1984 by which the Consent Terms executed between the
parties were taken on record. The Consent Terms inter alia records
the following clause No.6:
"6. Court Receiver to hand over all the assets and
properties of the suit firm taken charge of by him
to defendants Nos.1 to 3, and to stand discharged
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903 CRR 307.24 IN S 372.1967.DOC
without passing accounts on payment of his costs,
charges and expenses by defendants Nos. 1, 2 & 3. "
4. Mr. Rohan Sawant, learned Counsel submitted that the Court
Receiver is required to handover all the assets and properties of the
Suit firm taken charge by the Court Receiver to the heirs of
Defendant Nos. 1 to 3.
5. On the other hand, Mr. A. U. Bobade, learned Counsel
appearing for the Respondent No.6(d) i.e. the heirs of original
Defendant No.3 and Mr. Jintendra Ramugade, learned Counsel
appearing for the Respondent Nos.7(a) and 7(b) i.e. heirs and
legal representatives of the Plaintiffs submitted that the said decree
passed by the learned Single Judge dated 14 th February 1984 has
been challenged by way of an Appeal No.760 of 1984 and said
Appeal was dismissed by Order dated 11 th August 1988 by a
Division Bench of this Court. They submitted that the said Order
dated 11th August 1988 of the Division Bench has been challenged
before the Supreme Court by way of Special Leave Petition (SLP)
No. 16474 of 1988 and the said Special Leave Petition was also
dismissed on 13th February 1989. The Plaintiff filed Review
Petition No.368 of 1989 in the Supreme Court and the said Review
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Petition was also dismissed on 9 th August 1989. They therefore,
submitted that the decree directing the Court Receiver to
handover all the assets and properties of the Suit firm taken
charge by him, to Defendant Nos.1 to 3, has attained finality on 9 th
August 1989. They submitted that for the first time i.e on 3 rd
January 2019 the heirs of original Defendant Nos. 1 to 3 have
applied to the Court Receiver seeking implementation of said
decree passed on 14th February 1984 as confirmed by the Supreme
Court on 9th August 1989 and therefore, the same is barred by
limitation. They submitted that even the earlier Court Receiver's
Report dated 2nd December 2020 and present Receiver's Report
dated 26th July 2024 to implement the directions given by the
learned Single Judge on 14th February 1984 as confirmed by the
Supreme Court on 9th August 1989 is also barred by limitation.
They submitted that the prayers sought in the Chamber Summons
No.442 of 2019 are also barred by limitation. They therefore,
submitted that the Court Receiver's Report as well as the Chamber
Summons taken out some of by the heirs of the original Defendant
Nos. 1 to 3 be dismissed on this ground alone.
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6. Mr. Rohan Sawant, learned Counsel appearing for some of
the heirs of Defendant Nos.1 to 3 as well as Applicant in Chamber
Summons has relied on the decision of a learned Single Judge in
Atul D. Sohni v. B.M. Choksey 1.
7. Perusal of the record shows that the parties have entered
into the Consent Terms and inter alia agreed for the following
directions:
"Court Receiver to handover all the assets and
properties of the suit firm taken charge of by him
to defendants Nos.1 to 3 and to stand discharged
without passing accounts on payment of his costs,
charges and expenses by defendants Nos. 1, 2 & 3. "
The said direction passed by the learned Single Judge in
terms of the Consent Terms by Order dated 14 th February 1984 are
ultimately confirmed by the Supreme Court by Order dated 9 th
August 1989.
8. It is required to be noted that present Suit has been filed in
the year 1967 and Court Receiver has been appointed by Order
dated 21st July 1967 and by Order dated 14 th February 1984 as
1 (1998) 3 Mah LJ 258
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noted herein above, the Court Receiver was directed to handover
all the assets and properties of the Suit firm taken charge of by
him to Defendants Nos.1 to 3 and to stand discharged without
passing accounts on payment of his costs, charges and expenses by
Defendants Nos. 1 to 3.
9. Mr. A. U. Bobde, learned Counsel appearing for the
Respondent No. 6(d) i.e. heir of original Defendant No.4 and Mr.
Jintendra Ramugade, learned Counsel appearing for the heirs of
the Plaintiffs would have been right in taking a stand that
proceedings for execution of decree if filed by the decree holders
of the decree passed in their favour i.e. by the Defendant Nos. 1 to
3 or heirs and legal representatives of Defendant Nos. 1 to 3, then
such Execution Application would have been barred by limitation.
However, it is required to be noted that by Order dated 28 th June
1967/ 5th October 1967 this Court has appointed the Court
Receiver with respect to the properties in question and Court
Receiver is incharge of the properties. The legal position whether
the Court Receiver stands discharged immediately after the Court
passes order to that effect is explained by a learned Single Judge
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in Atul Sohni (supra) of which paragraph Nos.15 and 16 are
relevant. The said paragraph Nos.15 and 16 read as under:
"15. Even after going through all the aforesaid
parts of the Book of Receiver, I do not find any
specific provision as to when the office of the Court
Receiver should be deemed to have ceases function
i.e. whether from the date of the discharge order or
whether on any subsequent date or event. Chapter
XVII regarding discharge of the Receiver also does
not clarify this position even though it states under
Note: 1 Duration of receivership, that the duration
of the receivership is limited by the court. However,
it is repeatedly held that there is no automatic
discharge of receiver merely because the
proceedings have ended and Note No. 6 of the
same Chapter also provides that the termination of
the suit will not ipso facto discharge the Receiver. It
also says an order requiring a Receiver to return the
property in his possession to the defendant does
not in itself effect the discharge of receiver.
However, it states that when the main suit is
dismissed and the rights of the parties are finally
established, the receiver must account to the court
appointing him for money or property which is in
his hands and the court which appoints receiver has
authority to pass orders for winding up the affairs
of the receiver and his powers even after the
dismissal of the suit.
16. Supreme Court decision in Hiralal Patni v.
Loonkaren Sethia, AIR (1962) SC 21 is referred to
in this book on page 523 and the following
guidelines laid down by the Supreme Court have
been quoted as under:
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"(1) If a receiver is appointed in a suit until
judgment, the appointment is brought to an
end by the judgment to in the action.
(2) If a receiver is appointed in a suit
without his tenure being expressly defined,
he will continue to be a receiver till he is
discharged.
(3) But after the final disposal of the suit as
between the parties to the litigation, the
receiver's functions are terminated; he
would still be answerable to the court as its
officer till he is finally discharged.
(4) The court has ample power to continue
the receiver even after the final decree if the
exigencies of the case so require."
(Emphasis added)
10. Thus, as held by the Supreme Court in Seth Hiralal Patni v.
Seth Loonkaran Sethiya 2 as well as by the learned Single Judge in
Atul Sohni (supra), even after final disposal of the Suit as between
the parties to the litigation, and after the Court Receiver's functions
are terminated, the Court Receiver would still be answerable to the
Court as its Officer, till he is finally discharged. It is also settled law
that the Court has ample powers to continue the Court Receiver
even after the final Decree, if the exigencies of the case so require.
2 1961 SCC OnLine SC 312
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11. In this particular case, admittedly, the Decree passed by the
learned Single Judge dated 14th February 1984 has attained finality
when the Supreme Court dismissed the Review Petition by Order
dated 9th August 1989. It is also an admitted position that inspite
of the said Orders, the Court Receiver has continued to administer
the property. Thus, this is not a case where merely execution is
filed (assuming Chamber Summons No.442 of 2019 is an
execution proceeding) which is barred by limitation, however, in
this case, the Court Receiver is incharge of the property.
12. As noted herein above even after final disposal of the Suit as
between the parties to the litigation, and after the Court Receiver's
functions are terminated, the Court Receiver would still be
answerable to the Court as its Officer, till he is finally discharged. It
is also settled law that the Court has ample powers to continue the
Court Receiver even after the final Decree, if the exigencies of the
case so require. As the Court Receiver is still incharge of the
properties in the interest of justice, it is necessary to issue
directions to the Court Receiver which are consistent with the
decree/directions issued on 14th February 1984 by this Court.
Therefore the contention that no direction can be issued even to
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the Court Receiver in terms of decree dated 14 th February 1984
passed by the learned Single Judge as ultimately confirmed by the
Supreme Court's by Order dated 9th August 1989 as the execution
of the same is barred by limitation cannot be accepted.
13. Learned Counsel opposing the prayers in the Report of the
Court Receiver has not raised any other contention except that the
implementation of decree dated 14th February 1984 passed by the
learned Single Judge is barred by limitation. For the above reasons,
the said objection is rejected.
14. It is required to be noted that as set out in the Court
Receiver's Report No.307/2024, the property known as Shop
No.299/301, Ground Floor, Kharesh Bazar, Mumbai- 400 009 is in
actual and physical possession of the Court Receiver.
15. Insofar as the property mentioned in prayer clause (a) of the
Court Receiver's Report i.e. Shop No.299/301, Ground Floor,
Kharesh Bazar, Mumbai- 400 009, the Court Receiver shall
handover the possession of the same to the heirs of Defendant
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Nos. 1 to 3 who are also the Applicants in Chamber Summons
No.442 of 2019.
16. Mr. Rohan Sawant, learned Counsel appearing for some of
the heirs and representatives of the Defendant Nos. 1 to 3 states
that Mr. Deepak Anand (Applicant No.1A), Mr. Surendra Anand
(Applicant No.3) and Ms. Manorama Sethi (Respondent No.4 in
Chamber Summons) who are some of the heirs and legal
representatives of original Defendant Nos. 1 to 3 to whom the
Court Receiver can handover possession of the said shop premises
i.e. Shop No.299/301, Ground Floor, Kharesh Bazar, Mumbai- 400
009. He also pointed out that by Order dated 26 th February 2024,
a learned Single Judge has noted that the learned Counsel
appearing for the legal heirs of deceased Defendants would jointly
submit a joint Application which would be made to the Court
Receiver by submitting an indemnity for receiving possession of
the properties as per the consent Decree. Mr. Rohan Sawant,
learned Counsel states that such indemnity bond has already been
filed before the Court Receiver.
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17. Accordingly, the Court Receiver is directed to handover
physical possession of the suit premises i.e. Shop premises
No.299/301, Ground Floor, Kharesh Bazar, Mumbai- 400 009 to
Mr. Deepak Anand (Applicant No.1A), Mr. Surendra Anand
(Applicant No.3) and Ms. Manorama Sethi (Respondent No.4)
jointly on behalf of all the heirs and legal representatives of the
Defendant Nos. 1 to 3.
18. Mr. Rohan Sawant, learned Counsel states that the amount
as reflected in paragraph Nos.13 & 14 of the Court Receiver's
Report No.307 of 2024 can be deducted by the Court Receiver as
well as other charges and expenses and the balance amount can
be paid to the heirs and legal representatives of Defendant Nos.1
to 3.
19. Mr. Rohan Sawant, learned Counsel appearing for some of
the heirs and representatives of Defendant Nos.1 to 3 as well as
Mr. Shah, learned Counsel appearing for the Respondent No.4
state that the Court Receiver can issue cheque of balance amount
in favour of M/s. Narayanan & Narayanan, Advocates who has
taken out Chamber Summons No.442 of 2019. Both of them state
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that necessary indemnity bond will be issued in favour of the
Court. Receiver. Accordingly, Court Receiver to refund the balance
amount after deducting amount as reflected in paragraph 13 & 14
as well as other charges and expenses by cheque to M/s.
Narayanan & Narayanan, Advocates, on receipt of necessary
indemnity bond and fulfillment of other requirement in
accordance with law, if any.
20. Prayer clause (e) of the Court Receiver's Report is also
allowed.
21. Accordingly, the Court Receiver's Report No.307 of 2024 is
disposed of. The Court Receiver is discharged after handing over
the physical possession of the shop premises i.e. Shop
No.299/301, Ground Floor, Kharesh Bazar, Mumbai- 400 009 and
after complying with the directions issued hereinabove.
22. Accordingly, in view of discharge of Court Receiver in the
terms of the books of accounts and one trunk be handed over to
the heirs and legal representatives of Defendant Nos. 1 to 3 i.e.
jointly to Mr. Deepak Anand (Applicant No.1A), Mr. Surendra
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903 CRR 307.24 IN S 372.1967.DOC
Anand (Applicant No.3) and Ms. Manorama Sethi (Respondent
No.4).
23. In view of the disposal of the Court Receiver's Report
No.307 of 2024, nothing survives in the Chamber Summons
No.442 of 2019 and the same is also disposed of as it has become
infructuous.
[MADHAV J. JAMDAR, J.]
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