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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Prithviraj K Chavan, J.
Balkrishna Appayya Shetty - Appellant
Versus
Hemant H Thakkar - Respondent
Court Receiver Report No. 1 of 2021; First Appeal No. 369 of 2016; Suit No. 1186 of 1979; Civil Application No. 997 of 2016
Decided On : 06-05-2021
Court Receiver - Discharge without passing accounts - Bombay High Court Original Side Rule 596 - The Court Receiver took symbolic possession of the suit property and, inter alia, appointed the plaintiffs as his agents in respect of the suit property. The suit was decreed with costs, and the plaintiffs were directed to continue their possession in the suit shops and the business of Parkway Restaurant therein as owners thereof and not as agents of the Receiver after the Receiver is discharged. The Court Receiver requests discharge without passing accounts subject to costs, charges, and expenses to be paid by the plaintiffs as well as directing the parties to prosecute their claim before the Debt Recovery Tribunal independently.
Fact of the Case:
The Court Receiver took symbolic possession of the suit property and appointed the plaintiffs as his agents. The suit was decreed with costs, and the plaintiffs were directed to continue their possession in the suit shops and the business of Parkway Restaurant therein as owners thereof and not as agents of the Receiver after the Receiver is discharged. The Court Receiver requests discharge without passing accounts subject to costs, charges, and expenses to be paid by the plaintiffs as well as directing the parties to prosecute their claim before the Debt Recovery Tribunal independently.
Finding of the Court:
The Court found that the Court Receiver had already been discharged from symbolic possession, and the plaintiffs/respondents had never parted physical possession of the suit property in favor of the Court Receiver who was merely in symbolic possession thereof. The Court also found that the City Civil Court had no authority in law to entertain an application in a disposed of suit against which an appeal had already been pending in the High Court. The Court also emphasized the duty of the parties to comply with Bombay High Court Original Side Rule 596.
Issues: The issues considered by the Court included whether the City Civil Court could entertain an application in a disposed of suit against which an appeal had already been pending in the High Court, and whether the parties had complied with Bombay High Court Original Side Rule 596.
Ratio Decidendi: The Court held that the City Civil Court had no authority in law to entertain an application in a disposed of suit against which an appeal had already been pending in the High Court. The Court also emphasized the duty of the parties to comply with Bombay High Court Original Side Rule 596.
Final Decision: The application taken out by respondent No.2 before the City Civil Court was quashed and set aside. The Court Receiver was directed to submit the accounts within eight weeks from the date of passing of the order. The parties were at liberty to pursue their remedies before the Debt Recovery Tribunal, in accordance with the law.
JUDGMENT
Prithviraj K Chavan, J. -
1. This is an application by the Court Receiver (for short "C.R") with a twofold prayer viz; seeking a discharge without passing accounts subject to costs, charges and expenses to be paid by the plaintiffs qua the suit property and the parties to prosecute their claims before the Debt Recovery Tribunal (for short 'D.R.T"), independently.
2. Facts material for deciding this application can be summarized as follows;
In an appeal No.350 of 2001 in City Civil Court Suit No.6821 of 1979 (High Court Suit No.1186 of 1979), Division Bench of this Court (Coram: D.K. Deshmukh & J.H. Bhatia, JJ) passed the following order;
" By consent of the parties, the Appeal is disposed of in following terms;
(i) The judgment and order dated 30-3-2001 is set aside. The order dated 29-11-2000 passed in Suit No.1186 of 1979 is also set aside.
(ii) Suit No.1186 of 1979 is remitted back to the learned Single Judge for fresh trial in accordance with law.
(iii) The Receiver of this court is appointed as Receiver on the suit premises. The Receiver shall take symbolic possession of the premises and appoint the plaintiffs as agent of the Receiver to be in possession of the premises, where they will be permitted to carry on business of Restaurant.
(iv) The appointment of the Plaintiffs as agent of the Receiver shall be on usual terms and conditions except security and royalty. So far as royalty is concerned, the Receiver shall, after agency agreement is entered by the Plaintiffs, take steps to determine the amount of royalty in accordance with law. The amount that is to be determined by the Receiver as royalty shall not be required to be paid at present. The plaintiffs shall as agents of the Receiver shall file an undertaking before the learned single Judge that they will deposit the amount of royalty as may be determined by the Receiver, if so directed by the learned single Judge and on such terms and conditions as may be directed by the learned single Judge.
(v) Expenses of the Receiver shall be borne by the plaintiffs.
(vi) Considering that the suit is of the year 1979, the learned single Judge is requested to hear and dispose of the suit as expeditiously as possible".
3. Pursuant to the said order, the Court Receiver took symbolic possession of the suit property on 8th October, 2007 and, inter alia, appointed the plaintiffs as his agents in respect of the suit property.
4. On 1st February, 2020, one Advocate G.T. Mestha, representing respondents Hemant Thakkar and others forwarded a copy of an order of appointment of Court Receiver and order dated 7th January, 2020 passed by DRT-II informing that in Recovery Proceedings No.506 of 2004, the D.R.T had taken possession of the suit property on 28th January, 2020 from the Manager of the respondents with Police help without giving any copy of the Panchanama and locked the suit premises through one Prabhat J. Dubey who was appointed Advocate Commissioner as per the order dated 25th November, 2019. The Recovery Officer namely Sunit K. Meshram of the D.R.T-II, Mumbai had issued an order dated 7th January, 2020 appointing the said Mr. Prabhat Dubey as an Advocate Commissioner.
5. When the Section Officer of the Court Receiver's Office checked the status of the suit and the orders passed on the Official Website of the Mumbai City Civil Court, Mumbai, he came to know for the first time that the learned City Civil Judge by a judgment and order dated 4th December, 2015, decreed the suit. The operative order of the said judgment reads thus;
" Suit is decreed with costs.
The defendant do deliver the possession of the suit shops alongwith the suit business to the plaintiffs.
The plaintiffs shall continue their possession in the suit shops and the business of Parkway Restaurant therein as owners thereof and not as agents of the Receiver after Receiver is discharged. The Receiver shall stand discharged on passing accounts.
The defendant shall pay Rs.3000/- per month to the plaintiffs from 25.07.1979 till
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