Prahlad Rai Dalmia Huf & Ors. vs Sat Narain Dalmia Huf & Ors.
1999 Latest Caselaw 574 Del

ORDER

Vikramjit Sen, J.

1. This is an application under Order 40, Rule 1 for the appointment of a Receiver in respect of the suit property which is stated to be a four storied building consisting of shops and godowns on the ground floor and rooms above, built on Plot No. 123, bearing Municipal Nos. 4099, 4159 and 4099/1 Ward No. III, situated at Burn Baston Road, Naya Bazar, Delhi. In the suit it is prayed for partition of the property and for rendition of accounts. The suit was filed in 1986 and this application was filed one year later and which has been pending for over 12 years.

2. Learned counsel for the plaintiff/applicant submits that the property is jointly owned by the parties, and that they have 1/3rd share therein. It is averred that plaintiffs came to know that the defendant No. 2, Sat Narain Dalmia and Defendant No. 7. Seth Om Prakash Dalmia in order to deprive the plaintiffs of the income of the second and third floors have collusively and fictitiously executed some documents in favour of their own sons and wives and friends without the consent of the plaintiffs and further they have given these properties on licence basis on huge licence fees. Reliance is also placed on the Local Commissioner's report which has detailed that about 10 rooms have been let out. On the strength of a Division Bench Judgment of the Patna High Court reported as Kamal Chaudhary & Anr. Vs. Rajendra Chaudhary & Ors., the argument was advanced that since the plaintiffs are not being allowed the share in the huge profits earned by the defendants, a receiver ought to be appointed in respect of the suit property.

3. On behalf of defendants 1 to 5 it was submitted that the suit property belongs to the partnership and hence the suit is not maintainable. It is further submitted that partners had given their consent to the letting. Learned counsel for the defendants drew my attention to the rent note dated 23.7.1964 which has been signed by Shri Prahlad Rai Dalmia, father of the applicant and in which they are styled as partners. An affidavit dated 21.2.1986 sworn by the applicant which contains schedules showing rental receipts from the Delhi property has also been emphasised with the purpose of stressing that the rentals were paid and received in respect of the property in suit with the consent of the applicant.

4. Receiver should be appointed by the Court under the circumstances and conditions carefully as indicated in the case of T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty & Ors., . These are as follows:

(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.

(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.

(3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.

(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one. And

(5) The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame."

5. Without going into the controversy whether the suit is maintainable or not, after a passage of over 12 years since the filing of the application, the matter has obviously become stale. There is no emergency or danger or loss demanding immediate action and if the prayers in the application are allowed it would have the effect of depriving the non-applicants of a de facto possession which has been enjoyed for over a decade. It also appears, prima facie, that the letting/licencing of the portions of the suit property were effected, if not with the consent of the applicant at least within his knowledge. Reliance was placed on Kamal Chaudhary's case (supra) wherein the Court arrived at, prima facie, the conclusion in favour of the applicants. In the view that I have taken, on facts, this decision is of no assistance to the applicants.

6. There is no merit in the application which is dismissed with no order as to costs, since the application has been pending for several years.