1997 Supreme(Bom) 664

IN THE HIGH COURT OF BOMBAY
V.P. Tipnis Smt. R.P. Desai, JJ.
Manilal Govindji Khona ..... Appellant.
Versus
Indian Bank .... Respondent.
Appeal No. 960 of 1997 in Chamber Summons No. 1066 of 1997 in Suit No. 2636 of 1987, decided on 5-12-1997.
Advocates appeared :
N.G. Thakkar with T.G. Vora Ms. S.I. Shah, for appellant.
R.A. Kapadia with Shekhar Shetye, Ms. M.C. Shah i/b/ Pandya Gandhy Co., for respondent.

Headnote:Order XL, Rule 1-Suit for recovery by Bank-Court receiver Power-Defendant directed to pay the amount on or before the given date-Upon failure-Decree as prayed for be passed and immovable property to be sold by Court receiver-on default receiver directed to take physical/forcible possession-objected-Receiver could not oust the occupants-Held_ Where the order directing Receiver to take forcible physical possession not challenged-Receiver can take possession forcibly in view of express orders of Court.-In a suit failed by the Bank for recovery of a large amount, by order dated 9th December, 1996 the learned Single Judge passed a decree. Under the decree, which was passed as the defendants submitted to the same the learned Judge directed that the rate of interest should be @ a 12% p.a. instead of 18% p.a. as claimed in the decree. The defendant was given time of six months to make the payment. Upon failure, the decree was to be as prayed for by the plaintiff Bank. The learned Judge also noted in the order that the defendant has not filed written statement. The defendant was to pay the decretal amount on or before 31st May, 1997. Upon failure of the defendant to pay the amount as directed not only the decree was to be in terms of prayer clause (a) as claimed by the Bank but also decree in terms of prayers (b), (c), (d) and (e) which is relevant directed the immoveable properties, more particularly described in Exhibit A to the plaint, to be sold by the Commissioner for taking accounts or the Court Receiver by and under the decree and directions of this Court by Public auction or by private treaty and the net sale proceeds thereof the applied in or towards the satisfaction of the plaintiffs decretal claim. Under clause (d) sub-clause (iv) the Receiver was to stand appointed as a Receiver in execution.

       It appears that on 20th of June, 1997, the Bank moved the learned Judge for Judges order and upon reading the affidavit of the Officer of the Bank as also the report of the representative of the Court Receiver, by order dated 20th June, 1997 the learned Judge was pleased to order that the Court Receiver. Bombay to take forcible possession of the immoveable property along with structure standing thereon from defendants or from whosoever in possession by removing all obstructions with assistance of police if necessary and by breaking open lock or locks. The learned Judge authorised the Court Receiver to take forcible possession of the immoveable property even in the absence of the defendants.

       Court must record here that court had fixed this matter only to decide the point as to whether the Receiver could be said to be invested with all the powers under Order XL, Rule I, the moment he is appointed and without any express orders of the Court in that behalf or that whether Receiver has to be invested by express order of the Courts before he can exercise several powers enumerated in provisions of Order XL, However, on the factual matrix of this case, court find it unnecessary to decide the large question as in the facts before court it is clear that by order dated 20th of June, 1997 Justice Radhakrishnan expressly directed the Receiver to take forcible physical possession. It is extremely relevant to notice that the said order has not been challenged, strictly speaking it is absolutely right when he says that as a matter of fact no ad interim relief was claimed in terms of prayer clause (c) in the Chamber Summons. The ad interim relief was claimed only in terms of prayer clauses (e) and (f).

       It was submitted that order of 20th of June, 1997, is passed on the assumption that earlier order passed while passing the decree and directed the Receiver to take physical possession. Court of the opinion that it is not necessary to deal with this aspect of the matter. One thing is clear that the defendant has not paid nothing thing till this date to the plaintiff Bank. Secondly the Receiver was appointed for the purpose of sale of the property. Thirdly the Receiver and already given an appointment for taking physical possession and when the representative of the Receiver went to Coimbatore, the complaint was not that the order of the Court does not authorise the Receiver to take physical possession but the defendant categorically stated that he wants to challenge the order. On the basis of this material the learned Judge passed express order on 20th of June, 1997, directing the Receiver to take forcible possession. Taking into consideration the facts and circumstances of the case and the conduct of the defendant, Court is of the view that learned Judge was justified in passing the order dated 20th of June, 1997. Once court comes to that conclusion then it becomes academic to deal with the question as to whether Receiver can take possession of the property without express order to the Court in that behalf because as stated hereinbefore in the facts of the case Receiver was expressly authorised to take forcible possession under the order of 20th of June, 1997.