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2000(1) Supreme 24
SUPREME COURT OF INDIA
(From Bombay High Court)
S.P. Kurdukar & S.S. Mohammed Quadri, JJ.
Usha Harshadkumar Dalal -Appellant
versus
M/s. ORG Systems & Ors. -Respondents
Civil Appeal No. 39 of 2000
(Arising out of SLP (C) No. 16925 of 1998)
Decided on 6-1-2000
Counsel for the Parties :
For the Appellant : Rafiq A. Dada, Sr. Advocate, Atul S. Dayal, R. Sasiprabhu, Chirag Balsara, Advocates.
For the Respondent No. 1 : C. Mukund, T.V. Ratnam, Advocates.
For the Respondent : Miland Sathe, B.V. Deepak, M.P. Vinod, Advocates.
Held : It is well settled principle that when a Court Receiver is appointed in respect of any property it is said to be in custodia legis and court holds the property for the benefit of the true owner. The Court Receiver acts on behalf of the court. Even the court receiver will have no power to deal with such property without the leave of the court. It is the duty of the Court Receiver to maintain the status quo and also to protect the property from being put to waste or allow it to diminish its value. The Court Receiver cannot encumber the property in any manner without the leave of the court. It is the obligation of the Court as well as the Court Receiver to preserve and maintain the property as far as possible and practicable in the same form when it was taken in possession. If these principles are borne in mind, in our view, it is quite clear that when the possession of the property was taken by the Court Receiver in 1978, Suhrid Geigy Trading Limited was in occupation and the Court Receiver took symbolic possession thereof. It must be presumed that Suhrid Geigy Trading Limited was very much aware of the appointment of the Court Receiver. (Para 13)
It would not be correct to judgment of the Supreme Court in Anthony C. Leo v. Nandlal Bal Krishnan & Ors., 1996(8) Supreme 493 to mean that if the trespasser or any person who obtains the possession after the Receiver took over symbolic possession or actual possession of the property and if such person pleads that he is a tenant the only remedy for the Court Receiver is to approach the Rent court under the Bombay Rent Act. For instance, a person who is put in possession as an agent of the Receiver inducts a stranger and if such a third person claims a tenancy the question is whether Receiver should be directed to adopt the proceedings under the Bombay Rent Act for appropriate declaration and reliefs. If such a course is required to follow, in our opinion, the very object of Order XL Rule 1 and 3 of the Code of Civil Procedure would be defeated. The High Court in our opinion has totally misread and misinterpreted the ratio of Anthony C. Leo s case (supra). We must, however, make it clear that we are not laying down a broad proposition that in every case the Receiver can resort to the summary proceeding of this nature. The question would have to be decided by the Court with reference to the pleadings of the parties and the proof thereof. On perusal of the judgment of the High Court we find that the High Court has not considered various rival contentions raised by the parties in their pleadings. The High Court has also not considered the effect of non-renewal of the Leave and Licence Agreement after the expiry of its period nor it had considered the effect of Section 15 and 15A of the Bombay Rent Act. The High Court has also not considered what would be the effect of changes in the composition of Suhrid Geigy Trading Limited after the Receiver took the symbolic possession. All these various factual and legal contentions will have to be considered bearing in mind the provisions of the Bombay Rent Act as well as Companies Act. (Para 14)
JUDGMENT
S.P. Kurdukar, J.-Leave granted.
2. This civil appeal arises out of an order dated December 8/9, 1997, passed by the learned single Judge of the Bombay High Court on Chamber Summons (for short Ch/S) taken out by the appellants defendant Nos. 2, 7, 8, 11 and 13 to 26. By this Ch/S the appellants sought a direction to the respondent No. 1 i.e. M/s. ORG Systems to handover quiet, vacant and peaceful possession of the premises in their occupation forthwith. The dispute in this Ch/S is restricted to the fourth floor premises in Shreeniketan . It is alleged by the appellants that M/s. ORG Systems have been in illegal and unauthorise occupation of the premises in question as they have been inducted in the premises when the property was in possession of the Court Receiver without leave of the court.
3. It would be necessary to summarise briefly a few facts to indicate as to how the present Ch/S was required to be taken out by the appellants.
Usha Harshadkumar Dalal filed Suit No. 120 of 1978 on the Original side of the Bombay High Court for partition of the said property against Manibhai Jhaverbhai Patel & Ors. seeking partition and possession of her share in the said property. Obviously since it was a suit for partition amongst the co-owners the first respondent, namely, M/s. ORG Systems as well as second respondent Suhrid Geigy Trading Limited were not arrayed as defendants since they were not concerned with the partition of the joint family property. The appellant took out a Notice of Motion No. 115/78 in the said suit for various interim reliefs including the appointment of the Court Receiver. The learned single Judge vide its order dated 13th February, 1978, passed an ad interim order whereby Court Receiver, the Bombay High Court, was appointed as a Receiver of the suit property with a direction to take possession of the suit property and manage the same and do all other incidental things in relation thereto. Admittedly when the Court Receiver came to be appointed the premises in question was found to be in actual possession of Suhrid Geigy Trading Limited and, therefore, the Receiver took symbolic possession without disturbing the possession of Suhrid Geigy Trading Limited. The ad interim order was confirmed by the learned single Judge on July 24, 1978.
4. On September 7, 1970 (prior to suit) a Leave and Licence Agreement between the co-owners of a building called Shreeniketan Building was entered into with Suhrid Geigy Trading Limited whereby the said Suhrid Geigy Trading Limited was permitted to occupy the premises in question admeasuring 4850 square feet on terms and conditions set out therein. The relevant clause of the said agreement is as under:
"7. If the Licensees shall be desirous of having this licence renewed for further term of five years and shall at least three months before the expiration of the period of the Licence have given to the Licensors in writing a notice of their intention to take such renewed licence, the Licensors shall upon receiving such notice and if there shall not be at the time of such request by the Licensees any existing breach, non-performance or non-observance of any of the covenants and conditions on the part of the Licensees herein contained grant to the Licensees a fresh Licence of the Licensed Premises for a further period of 5 years at the same Licence fee or compensation (at the rate of Rs. 1.50 paise per sq. ft. for part of fourth floor) hereby demised and upon the same terms and conditions as are herein contained provided however that such fresh licence shall not contain a covenant for renewal."
5. There does not seem to be any dispute that the said agreement was not renewed for any further period. Other relevant clause in the said agreement is as under:
"11. The Licensees shall be entitled to give the licensed Premises or any part thereof on terms and conditions not inconsistent with the provisions hereof to their subsidiary associate concerns or affiliate Compa
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