Dhruv Goyal And Ors. vs Anand Prakash Goyal And Ors.
1996 Latest Caselaw 147 Del

JUDGMENT

S.D. Pandit, J.

(1) This application is filed by the plaintiffs under the provisions of Order 40 Rule I read with Section 151 of the Code of Civil Procedure for appointment of a Receiver in respect of the suit properties. According to the plaintiffs after the filing of the present suit they have got some letter written by the original Defendant No. 1 Anand Prakash Goel and it indicates that defendant No. I Anand Prakash Goel has divided various shops as well as profits from the said shops between his sons, defendants 2 & 3, in exclusion of the plaintiffs.

(2) The said deceased defendant No. 1 Anand Prakash Goel has executed a Will plaintiffs, defendants 2 &: 3 are acting against the interests of the Huf and, therefore, it is proper and necessary to appoint a Receiver.

(3) The claim of the plaintiffs is resisted by the defendants by filing their reply. They contended that shop Nos. 109 and 110, Palika Bazar, New Delhi are not the subject matter of the suit. As regards shop at Kamal Bazar it is the contention of the defendants that they were owned by defendant No. 1 Anand Prakash Goel and that the same were not joint family property. The shop Nos. 824 and 825, Nai Sarak, Delhi were never the joint family property. The District Magistrate of Dehradun had cancelled the licence of the petrol pump and the landlord on whose land the said petrol pump was established had also terminated the lease in favour of Bharat Petroleum. Thus, the said petrol pump business is not sold away by any of the defendants. On the contrary the cancellation of the agency was challenged by the defendants and others before the Supreme Court but they did not succeed in the same. They contended that they have not committed any act of either misappropriating the joint family property or having acted in any way detrimental to the joint family interest and, therefore, there are no grounds for appointment of a receiver.

(4) Plaintiffs are son, daughter and widow of Suresh Kumar. Suresh Kumar was the son of original defendant No.1 AnandPrakashGoelanddefendantNo.4Sundri Devi. Defendant No. 2 Virender Kumar and defendant No. 3 Ravinder Kumar are real brothers of said Suresh Kumar. The plaintiffs have filed the suit to get partition and separate possession of their share by metes and bounds. The plaintiffs have described the immovable properties and movable properties in Schedule 'A' and Schedule 'B' respectively annexed to the plaint.

(5) Plaintiffs are admittedly out of possession of the suit property on the date of the suit. Defendants 1,3 & 4 have contested the claim of the plaintiffs by filing their written statement and they contended that there was no joint family business as such and there were some partnership businesses of the partnerships entered into under the provisions of the Indian Partnership Act between some members of the Hindu joint family. The plaintiffs have also admitted the existence of partnership businesses and partnerships but they have falsely alleged that the said partnership businesses are joint family businesses. It is further contended by the defendants that, as a matter of fact, there was disruption of the joint Hindu family in the year 1964 and a memorandum of partition was effected on 17.4.1964 and as per the said memorandum of partition and the actual partition was effected and the members of the joint Hindu family were divided into four groups and various properties were given to those four groups separately by leaving some properties as of the joint ownership of group Nos.1 to 3 and each of these groups Nos.1, 2 & 3 was getting the share of the income of the said properties which were kept in common and joint between group Nos.1 to3.But again those properties which were kept joint between group Nos.1 to 3 were partitioned between the three groups. Thus, on the date of the suit the members of the joint Hindu family were already separated and the plaintiffs and defendants 1 to Kumar were entitled to share and inherited the share which Suresh Kumar would have received from the family of his two brothers and father. They have further contended that there were further partitions amongst the members of the joint Hindu family of Anand Prakash and sons on 31 .3.1982 and 14,9.1972. Thereafter, Suit No. 172/72 was filed by Ravinder Kumar Goel, defendant No. 2 in this suit, in the Dehradun Court and he was given 1/4th share and plaintiff No. 1 also got 1 / 4th share in the said suit property. In that suit plaintiff No. 1 herein had represented plaintiff No. 2 also. They con tend that each of the plaintiffs has got only 1 /5th share in the property of Suresh Kumar. They further con tended that the shops were never belonging to the joint Hindu family. The shops bearing Nos. 824 and 825, Nai Sarak, Delhi were of the ownership of defendant No. 17 and original tendency was with R.S. Madho Ram and sons and in the year 1977 the tenancy was in favour of M/s. Anand Prakash & Sons, a partnership-firm. Defendant Nos. 18 & 19 are the tenants in the property No. 22A/1 since long before the date of the suit. Thus, according to them, the plaintiffs have not come before this Court with true and honest claim and they are exaggerating their claim.

(6) In view of the pleadings of the parties I have to consider the question as to whether the plaintiffs' claim for appointment of Receiver is to be allowed or not. It must be remembered that appointment of Receiver is recognised as one of the harshest remedies at the law as provided for enforcement of rights and allowable only in extreme cases and circumstances where the interest of the person seeking the appointment of a Receiver is exposed to manifest peril. The Court is to appoint Receiver only in case if it is just and convenient. The appointment of Receiver is a matter of discretion of the Court. Not only the plaintiff must show a case of diverse and conflicting claims to property but he must show emergency or danger or loss demanding immediate action.Theelement of danger is an irnportant consideration. An order appointing a Receiver will not be made where it has the effect of depriving the defendant of effective possession since that might cause irreparable wrong.

(7) In the Schedule "A" Annexed to the plaint the property of Shop Nos. 109 and 110, Palika Bazaar is not shown as a suit property. Similarly, the property of Shop No. 825, Nai Sarak, Delhi is also not shown as the suit property. As regards the property of Shop No. 824 in the Schedule annexed to the plaint it has been admitted that the property is owned by Laxmi Narain Trust and defendant No. I carrying business in the same. Similarly, there is nothing on record to show that the defendants have voluntarily surrendered the petrol pump business. The documents which the applicants have produced alongwith this application are in consonance with the stand of defendants in the suit. None of them is a document for any transaction for the disposal or alienation of any alleged joint family property. None of them is showing that the defendants have acted to defraud the plaintiffs.

(8) The execution of Will by original defendant No. I is in the light of stand taken by them in their written statement. Thus, they do not prima facie show that the defendants have acted malafide and prejudicial which defendants 2 & 3 were carrying prior to the date of the suit or carrying after the date of the suit is a joint Hindu family business. No doubt plaintiff Nos.1 & 2 were taken as the partners in one of the firm only for the purpose of profits as they were minors and their shares in the profit are mentioned from time to time in the said partnerships. But the reduction of their share in the profits and ultimately discontinuing them from the partnership could not be said to be an act entitling them for appointment of a receiver.

(9) At the cost of repetition it must be said that in para No. 8 of their petition the plaintiffs admit the partition claimed by the defendants in the year 1964. They also admit that subsequent to that the various businesses were carried out by partnership and the various documents of partnership are produced by both the sides. Merely because the defendants are making change in the said partnership business it could not be said that the Receiver should be appointed. It is very pertinent to note that there is no prima facie evidence to show that the said changes are being made in order to defraud the plaintiffs. There is also no prima facie evidence to show that if the respondent is not appointed the plaintiff would not be in a position to get their share in the alleged joint property. Father of plaintiff Nos.1& 2 was not also partner in all firms. Admittedly, the plaintiffs were not in possession of the alleged joint property except the residential house. As regards the residential house, as per the case of the plaintiff, they were dispossessed and interim orders were passed asking the defendants to pay certain amounts towards the rent of the premises which are in occupation of the plaintiff. Therefore, in these circumstance, it would not be just and proper to deprive the defendants, who are in possession of the property, by appointment of a Receiver. It could not be said that by non-appointment of Receiver the plaintiffs are likely to suffer irreparable loss or injury.

(10) Learned Counsel for the plaintiff has cited before me the cases of Balram Singh Ram Lal v. Sheikh Munir Sheikh Gulab [AIR 1955 Bhopal 14]; Tilak Chand fain v. Darshan Lal Jain ; and Dhyan Singh v. Hamarayan [AIR 1929 Lahore 780]. But if the facts of all these cases are seen then it would be quite clear that they are not at all applicable to the facts of the case before me. In the first two cases the Court had found that there was danger to the property and, therefore, receiver was appointed and in the third case the issue as to whether one of the party to the suit could be appointed as a Receiver has been considered and it has been held that one of the party could also be appointed as the Receiver.

(11) Therefore, in these circumstances, I hold that the plaintiffs prayer for appointment of Receiver will have to be rejected. I, therefore, reject this application. Costs of this application to be the costs in the cause. language of Section 59(1)(b), as it stood at the relevant time, is clear and unambiguous. It says that the importer shall have to execute a bond undertaking inter alia to pay interest from the date specified in the notice of demand. We have already extracted Clause (b) in full hereinbefore. The liability to pay interest arises only after the expiry of the period prescribed in the notice of demand. It has been held by the High Court that the present matter is not governed by Section 61(2), as it stood at the relevant time, but by Section 59(1) alone. Indeed, it is submitted that when the respondent applied for extension of time of warehousing under Section 61(2), the Government told it that he said provision had no application and hence, time cannot be extended thereunder. Once that is so, we must go by what Section 59(1) says. According to it, the duty became due on issuing the notice of demand. The notice prescribed fifteen days for payment. Interest is chargeable only thereafter as held by the High Court, which, in our opinion, is a reasonable way of understanding the provision. Secondly, we see no justification or legal basis for die appellants' plea that the interest must be paid taking the rate of the duty at ninety percent for the said entire period. As a matter of fact, the rate of duty on the said goods was not ninety percent throughout the period March 22,1985 to September 9,1988. It was varying. The High Court's direction, therefore, to take the actual rate in force from time to time is a reasonable one. We are, therefore, of the opinion that the judgment of the High Court does not call for any interference. The appeals are accordingly dismissed. No costs.