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2018 Supreme(Bom) 2169
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.K. MENON, J.
Shernaz Faroukh Lawyer and Ors. - Appellant
Versus
Manek Dara Sukhadwalla and Ors. - Respondent
Report No. 1 of 2016 and Supplementary Report No. 1 of 2016 in Testamentary Suit No. 29 of 2012
Decided On : 21-12-2018
Advocate Appeared:
For the Appellant :D.J. Khambata, Senior Advocate, N.A. Agarwal, Naira Jeejeebhoy P.A. Kabadi and Taruna Nagpal
For the Respondent: K. Thacker and M.K. Tanna
Headnote:
Indian Succession Act - Section 317 - Indian Penal Code, 1860 - Sections 191, 192, 196, 199 and 200 – Criminal Procedure Code, 1973 - Section 340 - Testamentary Suit - Immovable properties - Possession - Fabrication of documents - Whether Administrator should stand by in anticipation of compliance by defendant/notices - It was submitted on behalf of plaintiffs that administrator had made numerous attempts to compile all facts relating to affairs of deceased and suspected diversion of part of estate by certain personal entities - It is submitted by Mr. Khambata that plaintiffs have learnt that funds of estate have been diverted inter alia to one Amoha Traders Pvt. Ltd. (Amoha) and one Bai Avabai Hormusji Tata Trust for Charitable Objects (the Trust) - It is case of applicant that Amoha along with one Jamsheed Minocher Panday have conspired with defendant no. 1 to siphon funds from estate of deceased - In course of hearing of this Report, numerous orders have been passed by this Court leading to disclosures from time to time - It is contended that these disclosures prima facie reveal that the siphoning of monies probably involved other persons/entities such as one Safe Securities Services, who are suspected of playing a systematic fraud on Court appointed administrator and plaintiff - Held, Administrator to file a suit may be appropriate and in normal cases the rule, the Court directing the filing of a complaint may be the exception. Given the factual matrix and the complex machinations now revealed, I am inclined to believe that directing an Officer of this Court to file an appropriate complaints would be the correct course of action - Administrator is provided with all necessary assistance to complete task in hand - Given non co-operative, obstructive and misleading conduct demonstrated over the past few years it is time to ensure that protection of estate is complete in all respects both by securing estate as presently stands and by recovery of all that has been taken away from it to meet the ends of justice and to ensure proper administration of justice - It is necessary to ensure that the enquiry is conducted in a focused and purposive manner - Administrator will therefore be required to provide all necessary support - In this behalf needless to mention, the defendant no. 1/notices are expected to be co-operative to fullest extent. After all it is the defendant no. 1s case that as executor of Will propounded by him that he has an obligation to justice to his role as executor - Resistance to an enquiry does not appear justified in view of first defendants contention that administrator may if he so desires file complaints – Order accordingly.
JUDGMENT :
A.K. MENON, J.
1. Purvez Burjor Dalal died in Mumbai on 7th December 2011. An administrator came to be appointed of the estate of late Purvez Burjor Dalal by this Court on 21st November, 2013. The order appointing the Administrator has since attained finality. The administrator has since taken charge and he has in the process of administering the estate filed the above reports. The reports have been taken up today for hearing. The plaintiffs and defendant no. 1 were directed to hand over movable and immovable properties in their possession and also take steps to identify properties forming part of the estate by making necessary enquiries in that behalf. Vide an order dated 24th December, 2013 the Administrator was directed to file the proceedings for recovery of properties and to engage Advocates and seek directions from this Court as and when necessary. The Administrator has since opened a bank account with the Central Bank of India, Mahatma Gandhi Road, Mumbai (Administrative Account). The reference as to plaintiffs and defendants in this order shall mean reference to the parties to Testamentary Suit no. 29 of 2012.
2. In this report, the administrator has sought the following reliefs:
(a) direct the defendant no. 1 to make available to the administrator of document pertaining to flat no. 8, Al-Karim Manzil, including papers pertaining to litigation in respect of the said flat;
(b) direct HSBC to furnish to the administrator copies of statements of accounts, details of account holders and authorized signatory relating to bank accounts in the joint names of testator late Purvez Burjor Dalal and/or late Jamshed Burjor Dalal, brother of the testator and one B.J. Dhoodmal including the particulars of bank account to which certain sums of money had been transferred from the account held in the HSBC by Jamshed and Purvez Dalal;
(c) a direction to Kotak Mahindra Bank Limited (KMBL) to furnish details of bank account to which sums have been transferred on 11th April, 2012 and 24th March, 2012 from an account opened by defendant no. 1 in the name of the deceased;
(d) to direct defendant no. 1 and one Amoha Traders Pvt. Ltd. to furnish to the administrator copies of documents and particulars relating to certain accounts received by the said company from an account opened by defendant no. 1 in the name of deceased testator with KMBL Account;
(e) a direction to the defendant no. 1 and Amoha to pay over to the administrator a sum of Rs. 17,08,147/- received by Amoha from KMBL Account with interest thereon from 24th March, 2012 till payment;
(f) to direct defendant no. 1 and trustees of one Avabai Hormasji Charitable Trust and Bai Avabai Hormusji Tata Trust to deliver to the administrator true copies of documents relating to a sum of Rs. 15 lakhs received by Avabai Hormasji Charitable Trust on 11th April, 2012 from KMBL Account as also correspondence relating thereto;
(g) a direction to defendant no. 1 and trustees (the Trusts) to pay over to the administrator a sum of Rs. 15 lakhs along with interest thereon; and
(h) a direction to one B.J. Dhoodmal to provide the administrator with details of bank accounts in the joint names of the deceased and/or late Jamshed Dalal and the said Dhoodmal including accounts to which amounts have been transferred from the HSBC account standing in the names of Jamshed, Purvez and Dhoodmal and defendant no. 1.
3. A Supplementary Report has also been filed by the administrator calling upon defendant no. 1 to furnish the present address of one of the Directors of Amoha and Avabai Hormasji Tata Charity Trust defendant no. 1.
4. The facts as they have transpired and which have prompted the administrator to make this application have been canvassed by the learned Senior Advocate appearing on behalf of the plaintiffs and by the Administrator. It was submitted on behalf of the plaintiffs that the administrator had made numerous attempts to compile all the facts relating to the affairs of the deceased and the suspec
