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1999 Supreme(Cal) 612
High Court Of Calcutta
S. B. SINHA, M. H. S. ANSARI, MAHEMMAD HABEEB SHAMS ANSARI
SACHIN BARICK GENERAL ENTERPRISES PVT.LTD. - Appellant
Versus
PARUL BARICK - Respondent
G. A. 4578 Of 1999
Decided On : 11/29/1999
A Receiver should not be appointed unless a strong prima facie case is made out, even in a partition suit.
Headnote:
{'KEYWORD': 'RECEIVER', 'SUBJECT': 'Appointment of Receiver', 'ACT SECTION LIST': ['Or. 40 r. 1, CPC']}
Fact of the Case:
The appellant filed an application for leave to let out a vacant portion of the property in question. The respondents did not file any application for the appointment of a Receiver, but an oral prayer was made, and the trial Judge appointed a Receiver. The appellant challenged the appointment of the Receiver.
Finding of the Court:
The court held that the principles for appointing a Receiver were not followed by the trial Judge. The court found that there was no apprehension of waste or danger, and the appellant had been submitting profit and loss accounts and balance sheets. The court also noted that the respondents did not oppose the appellant's prayer for leave to let out the property.
Issues: Whether the trial Judge erred in appointing a Receiver without following the principles for appointing a Receiver.
Ratio Decidendi: The court held that the trial Judge erred in appointing a Receiver without following the principles for appointing a Receiver. The court found that there was no apprehension of waste or danger, and the appellant had been submitting profit and loss accounts and balance sheets. The court also noted that the respondents did not oppose the appellant's prayer for leave to let out the property.
Final Decision: The court set aside the order of the trial Judge appointing the Receiver and directed the appellant to file a copy of the last audited balance sheet and profit and loss account with the Registrar, Original Side of the court.
( 1 ) ).-THERE shall be an order in terms of prayer (a) of the application.
( 2 ) HAVING heard the learned counsel for the parties, we are of the opinion that both the appeal and the application should be disposed of treating the appeal on the day's list.
( 3 ) THIS appeal is directed against a judgment and order dated 15th September 1999 passed by a learned single Judge of this Court whereby and whereunder while granting leave to the appellant to induct a tenant, a Receiver was directed to be appointed for the purpose of keeping the accounts secretly in his custody and giving inspection thereof to the parties, if they so require. It was further directed that the monthly remuneration of the Receiver would come out from the income of the building and ultimately would be adjusted as against the cost of the suit.
( 4 ) THE fact of the matter is not in dispute. An Administration Suit has been filed by the respondent No. 1 series herein. Another group of contenders in the suit are respondent 2 (a) to 2 (h) represented by Mr. Basu. The property in question is situated at 8, Chittaranjan Avenue which had been brought in the schedule of the properties by way of amendment.
( 5 ) IT is not in dispute that from time to time applications had been made either orally or in writing on eight occasions for letting out different portions of the said property. It is further not in dispute that applications for appointment of Receiver had been filed and two out of three applications had been rejected. It is stated that an application for appointment of Receiver which has been filed after the aforementioned amendment has been carried out and the property situate at 8, Chittaranjan Avenue was brought within the purview of the suit. Another application for appointment of Receiver had been filed which was directed to be heard along with the suit.
( 6 ) IN respect of one of such applications seeking leave to let out the property, an appeal was preferred and a Division Bench of this Court by an order dated 31st July 1995 inter alia, directed that the appeal cannot be entertained as the appellant herein was entitled to seek leave from the Court before letting out the properties, as an order of injunction had been in force.
( 7 ) AN application has been filed by the appellant herein for leave to let out 1500 square feet of the property which has been fallen vacant. The respondents herein did not file any application for appointment of Receiver. However, it appears that an oral prayer had been made for appointment of such receiver and upon hearing the learned counsel for the parties the learned trial Judge passed the aforementioned order.
( 8 ) IT is now a well settled principles of law that although an order appointing Receiver can be passed for the purpose of preservation of the property even if no formal application as such need to be filed, but there cannot be any doubt whatsoever that adequate materials must be brought on records so as to enable the Court to arrive at a definite conclusion that it is just and convenient to appoint a Receiver. If a Receiver had not been appointed for a long time despite the fact that similar applications for grant of leave to let out portions of the property in question had been granted, we fail to understand why on an oral application made by the respondents herein a Receiver should have been appointed. A Receiver, as is well known, is not appointed unless a strong prima facie case is made out, Even in a partition suit a Receiver is not to be appointed automatically. This Court in Krishna Deb and Ors. v. Surendra Krishna Nandi and Ors. reported in 34 CWN 440 has held as follows :-"if, however, that prayer has really been given up an application for a Receiver will scarcely lie. The words 'just and convenient' have been taken from the Judicature Act 1873 where the words are 'just and convenient'. The latter expression has been held to mean 'just and convenient' and it has been held that they
