Jeevan Das vs Shri Anil Sharma & Anr.
2000 Latest Caselaw 163 Del

ORDER

Vikramajit Sen, J.

1. This application has been filed on behalf of the Plaintiff under Order XXXX ,Rule 1 read with Section 151 CPC. It has been prayed that a Receiver of the business may be appointed. The allegations in the plaint are that the Plaintiff till 1993 was participating in the business of selling of flowers at the Hanuman Mandir, Baba Kharak Singh Marg, Connaught Place, New Delhi, along with the Defendants. However, thereafter he has not been permitted to participate in this business and has also not been given his share of the profits. A specific grievance has been made that the Defendants have not complied with the orders of the Court whereby they were directed to file statements of accounts of this business. It is in these facts that the Plaintiff has alleged that he is suffering irreparable loss and injury if the Receiver of the business is not appointed.

2. In the course of arguments, learned counsel for the Plaintiff had stressed that a perusal of the accounts would disclose that the Defendants have claimed that a meagre sum of Rs. 2000/- has been earned as profits. He has further submitted that the Plaintiff is willing to participate in an auction inter se the parties and/or to give a written bid for the business. Without considering the Plaintiff to be limited or restricted by his statement, learned counsel had submitted that he would be prepared to underwrite double the amount mentioned by the Defendants. Learned counsel for the Defendants has strenuously resisted the application. He has pointed out that the plaint fails to disclose the right of the Plaintiff in the business. Relying on an averment in the plaint to the effect that the profits earned by the Defendants were Rs. 1 lac per month he had stated that, without prejudice to the Defendants contention that the Plaintiff has no right to share in this business, they would be quite prepared to handover this business if they receive Rs. 1 lac per month or even half thereof, i.e. Rs. 50,000/- per month.

3. In the threshold hearing of the case, on 8.12.1997 the following order was passed :

"I.A. 10247/97

It appears from the case that the plaintiff and the defendant are uncle and nephew. It is claimed that the plaintiff and his brother were running business in the shop on six monthly shift basis. However, it is apparent that the plaintiff is not running the business since 1993 as per prayer clause (d) of the prayer clause and seeking rendition of accounts. In such circumstances I feel that the only order which can be passed at this stage is that defendant should file affidavit stating the total yearly turnovers and profits since 1993 and the defendants should file quarterly statement of accounts. I do not feel that this can be said to be a fit case in which any mandatory or prohibitory injunction should be issued allowing the participation of the plaintiff in the business after a lapse of 4 years.

I.A. is disposed of accordingly".

4. Obviously the Court was not convinced that a temporary injunction should be granted to the Plaintiff. The Court was primarily persuaded of this fact because of the Plaintiff's own case that he had not participated in the profits since 1993. No doubt an order directing the Defendants to file affidavit stating the total yearly turnover since 1993 had been passed, which has not been diligently complied with. However, there is no dispute that these accounts are now available on the record. Their veracity is yet to be determined. A perusal of the plaint also shows that there is not even a perfunctory statement showing how the Plaintiff has a legal right in this business. This fact coupled with the dispossession since 1993 and the palpably absurdly astronomical figure of sales or profits of Rs. 1 lac per month have convinced me to the absence of any prima facie case in favour of the Plaintiff.

5. An order for the appointment of a Receiver can be made under Order xxxx, Rule 1 if it appears to the Court to be just and convenient so to do. These orders, however, have to be passed with circumspection and to my mind only where an overwhelming prima facie case has been made out. There is no justification whatsoever for appointment of a Receiver in a case where the Plaintiff, had on his own showing, has been ousted from the business at least four years prior to his filing an action for partition etc. This is, therefore, not a fit case, on any consideration of the matter, for the appointment of a Receiver.

6. The application is dismissed, since it appears to me to be vexatious, with costs of Rs. 1,000/-.