Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1395-18 in Court Receiver Report 3 of 2017
Suit no.9812 of 1989 H.C.Suit No. 3349 of 1989
1 Date :08.12.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1395 OF 2018
IN
COURT RECEIVER REPORT NO. 3 OF 2017
IN
SUIT NO. 9812 OF 1989
H.C. SUIT NO. 3349 OF 1989
(CNR MHCC01-004395-2018)
Saldana Realty and Infrastructure LLP. .. Applicant
And
Sunil C. Thadani .. Plaintiff
Versus
Haresh Chetan Thadani & Anr. .. Defendants
And
The Court Receiver, High Court, Bombay .. Respondent
Appearances :-
Ld. Adv. Sandeep Sharma for plaintiff.
Ld. Adv. Mr.Pankaj Kawli for defendant no.1.
Ld. Adv. R.C. Nichani for defendant no.2(a) and 2(b).
Ld. Adv. Adv.Arvind Giriraj i/b Omkar Geedh for applicant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 08.12.2020
ORDER
1. The applicant has filed instant Notice of Motion seeking
following reliefs :
a) That delay of 172 days in taking out this application may
be condoned.
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b) That this Hon’ble Court be pleased to vacate and / or set
aside the impugned order dated 25.09.2017 passed on
Exh. ‘4’ being Court Receiver’s Report bearing No. 3 of
2017 dated 02.01.2017 (Exhibit F to the Affidavit in
support).
c) That pending the hearing and final disposal of this Notice
of Motion this Hon’ble Court be pleased to stay the
operation and implementation of the impugned order
dated 25.09.2017 passed on Exhibit ‘4’ being Court
Receiver’s Report bearing no. 3 of 2017 dated 02.01.2017
(Exhibit F to the Affidavit in support).
d) That pending the hearing and final disposal of this Notice
of Motion, this Hon’ble Court be pleased to restrain the
Respondent and / or its officers and / or any person or
persons claiming through or under them from in any
manner taking any steps in furtherance to and / or in
implementation of the impugned order dated 25.09.2017
passed on Exhibit ‘4’ being Court Receiver’s Report
bearing No. 3 of 2017 dated 02.01.2017 (Exhibit F to the
Affidavit in support).
e) Ad-interim and interim reliefs in terms of prayer clauses
(a) to (d) above.
f) For cost of this Notice Motion.
e) For such further and other reliefs as the nature and
circumstances of the case may require.
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2. It is the case of the applicant that, the Bombay Xaverian
Corporation Private Limited, a trust registered under the provision
of the Bombay Public Trust Act, 1950 was the owner of the larger
land admeasuring 3,66,427.48 sq. mtrs. situated at Village
Mulgaon, Gundavali, Chakala
(hereinafter shall be referred as
“Trust”).
3
. The said trust have created various leasehold rights in
respect of certain portion of the land, in favour of third parties.
The Trust have created lease of Plot No. 36 admeasuring about
4013 sq. mtrs. in favour of Chetan B. Thadani, who was proprietor
of M/s. Evergreen Trade and Agencies for a period of 98 years,
commencing from 15.03.1970. Thereafter, the said proprietorship
firm converted into partnership firm consisting of three partners,
out of which the plaintiff and defendant no. 1 were the partners of
the said firm.
4. It is contended that, due to dispute arose between the
partners of the said firm, the Court Receiver came to be appointed
on Plot No. 36, which was subsequently, sub divided into 36-A and
36-B
(hereinafter shall be referred to as suit property).
5. It is further contended that, the applicant on 12.05.2013
purchased various plots including suit plot from the Trust, after
obtaining the due permission from Charity Commissioner. The
aforesaid fact was intimated by the defendant no. 1 vide, its letter
dated 09.03.2016. In pursuance of the aforesaid letter, the Court
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Receiver vide, its letter dated 07.04.2016 requested the applicant
to furnish copy of Deed of Conveyance dated 12.05.2013. In view
of the said Deed of Conveyance, the Court Receiver vide, its report
No. 3 f 2017 sought various directions from the Court. The Court
vide, its order dated 25.09.2017, without adding the Trust and the
applicant passed the following order upon Court Receiver’s
Report :
(1) Court Receiver is directed to receive the conveyance deed
and other title documents from M/s. Saldan reality and
Infrastructure Pvt. Ltd. in respect of suit plot and to keep
it in his possession till final adjudication of the suit.
(2) Mr. Allwyn Saldana and M/s. Saldan Reality and
infrastructure Pvt. Ltd. are directed to deposit sale deed,
conveyance deed, title deed in respect of suit property to
the Court Receiver within one week from the date of
order.
(3) Issue show cause notice to Mr. Allwyn Saldana as to why
action should not be intimated against him in respect of
transaction of the suit property when there was no such
order from Court Receiver who is custodia legis in this
matter. Returnable on 13.10.2017.
(4) Meanwhile Court Receiver is directed to submit
compliance report of the order.
(5) Court Receiver is entitled to withdraw Rs. 3,000/-
towards cost of this report out of the funds lying with
Court Receiver.
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(6) Both parties shall take not of this order.
6. It is contended by the applicant that, the plaintiff and
defendant no. 1 in collusion, mis-represented the Court and thus,
obtained impugned order which has been passed without granting
him opportunity of hearing. Neither the applicant, nor
predecessor in title i.e. Trust are the parties to the present lis, and
therefore, he sought case papers of the present proceedings from
respondent i.e. Court Receiver by issuing letter dated 23.10.2017.
However, the Court Receiver failed to provide the papers and
proceedings of the above suit. The applicant had already
submitted the copy of Conveyance Deed dated 12.05.2013 to the
Court Receiver and the original Lease Deed with respect to the suit
property is with lessees. Therefore, he is unable to produce the
same.
7. It is contended that, the dispute between the partners of the
firm i.e. M/s. Evergreen Trades & Agencies are with respect to
their leasehold right. There is distinction between leasehold right
and ownership right. The Trust i.e. owner can certainly part with
its ownership right of the property, which is given on lease. The
rights of Lessee under Lease Deed dated 14.11.1970 remains
unaffected. The Conveyance Deed of the applicant do not
interfered or disturbed with the leasehold right of the Lessees.
Hence, issuing such direction by this Court without adding him
party is not legal and proper. Therefore, the applicant prayed for
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quashing and setting aside the impugned order dated 25.09.2017
passed by this Court on Court Receiver’s Report No. 3 of 2017.
8. It is further contended by the applicant that, he got the
knowledge of impugned order when he has received the letter
dated 10.102017 issued by Court Receiver seeking original
Conveyance Deed dated 12.05.2013. Thereafter, the applicant
consulted his advocate and upon legal advice, he has preferred
instant Notice of Motion. According to the applicant, there is a
delay of 172 days in preferring present Notice of Motion. The
delay caused is unintentional and unavoidable. Therefore, the
applicant prayed for condonation of delay in preferring present
Notice of Motion.
9. The Notice of Motion is opposed by the defendant no. 1 by
filing his reply. It is contended by the defendant no. 1 that one
Authorised Signatory of applicant by name Mr. Allwyn Saldana
had acted as a Constituted Attorney of M/s. Bombay Xaverian
Corporation Private Limited since 28.02.2009 and had represented
since then before Court Receiver. Thus, the applicant is having
knowledge of pendency of the proceeding as well as appointment
of Court Receiver on the suit property and that the suit property is
custodia legis. Inspite of that, the applicant without obtaining the
permission of the Court and without intimating the Court Receiver
has executed the Conveyance Deed of suit property on 12.05.2013.
Therefore, the act of Mr. Allwyn Saldana amount to contempt of
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the Court and the said act is in violation and willfully disobedience
of the order of this Court.
10. It is further contended that the Lease Deed Dated 14.11.1970
by which the parties to the suit were become the Lessee contained
reversionary clause by which they were given right to purchase the
property. The Conveyance Deed dated 12.05.2013 caused
hindrance in the aforesaid right of the parties of reversionary to
purchase the suit property. The conduct of applicant is nothing but
to deprive the parties from their legitimate right and also to
protract the matter. Hence, the defendant no. 1 have supported
the impugned order by contending that, this Court rightly called
upon the applicant to deposit the original Conveyance Deed dated
12.05.2013, so that, the applicant would not create third party
right in the suit property.
11. The defendant no. 2(a) and 2(b) also supported the
impugned order. It has been contended that, during life time of
father of original defendant no. 2, she has paid consideration
amount for purchasing the reversionary right and thus, she
becomes the owner of the suit plot. The Trust inspite of encashing
the aforesaid cheque, did not transfer the suit plot in the name of
original defendant no. 2. The defendant no. 2(a) and 2 (b) also
taken the similar stand as of defendant no.1 and thus, supported
to the impugned order.
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12. The applicant by filing rejoinder has contended that, they
were not aware of facts of the case as neither owner nor applicant
was added as party in the present suit. Moreover, they are not
concern with the dispute between the lessee inter se. It is
contended that the applicant were never aware about the dispute
between the parties. The Court Receiver was appointed on the
leasehold property, which is distinct from the ownership of the suit
property. If the parties to the suit were seeking specific relief
against the applicant, they ought to have applied the Court for
adding them as a party, so that they would also got an opportunity
of hearing before passing of impugned order. Thus, the applicant
contended that, the impugned order passed by this Court is in
violation of principal of natural justice. Hence, the applicant
prayed for allowing the present Notice of Motion.
13. Heard both the sides at length. The applicant challenged the
impugned order dated 25.09.2017 on the ground that, although
they were not parties to the proceeding nor intimation was given
that the defendant no. 1 is going to ask for relief against them, this
Court passed impugned order on the mis-representation made by
the parties. Hence, the impugned order is in violation of principal
of natural justice. Hence, the impugned order be quashed and set
aside in the interest of justice.
14. Initially, Ld. Advocate Mr. Arvind Giriraj on behalf of the
applicant argued that, they have preferred instant application for
setting aside impugned order as impugned order passed ex-parte.
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Therefore, their application is under Order 9 Rule 13 of Code of
Civil Procedure. However, when he realised that, the Order 9 Rule
13 of Code of Civil Procedure is applicable only with respect to the
decrees passed Ex-parte, he argued that his application is for
recalling of order. However, on perusal of pleadings of Notice of
Motion, I do not find a single word seeking recalling of order.
15. It has been argued by the Ld. Adv. Arvind Giriraj that,
impugned order is passed without falling the principal of natural
justice and is obtained by mis-representation. Hence, this Court by
exercising its inherent power under Section 151 of Code of Civil
Procedure, can recall the impugned order in the interest of justice.
In support of his submission, he has relied on the following
Judgments :
1. Hon’ble Supreme Court in case of Sri Budhia Swain &
Ors. V/s. Gopinath Deb & Ors. decided on 07.05.1999,
2. In case of Padam Sen & Ors. V/s. The State of uttar
Pradesh reported in AIR 1961 SC 2018,
3. Hon’ble Apex Court in case of Asif Kumar Kar V/s. State
of West Bengal decided on 21.01.2009,
4. Hon’ble Supreme Court in case of United India Insurance
Co. Ltd. V/s. Rajendra Singh & Ors. reported in AIR 2000
SC 1165,
5. Hon’ble Calcutta High Court in case of Sm. Annapurna
Chatterjee V/s. Sm. Sabita Guha & Ors. reported in AIR
1979 Cal 338, 83 CWN 783.
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16. Per contra the defendants pointed out that the Court
Receiver before submitting his Report No. 3 of 2017 vide, its letter
dated 07.01.2017, informed the applicant and its Advocate about
the filing of its report and hearing of the matter. The report itself
specifically speak that, the Court Receiver sought specific direction
against the execution of the Conveyance Deed of the suit property
in favour of the applicant. The applicant through his Advocate,
since 2009 have appeared before the Court Receiver time to time.
However, this time the applicant purposefully remain absent chose
to watch, what order would passed on the said report. The
defendants also brought my attention on various proceedings
conducted before the Court Receiver, wherein Mr. Allwyn Saldana
had appeared and represented the Trust.
17. The Court Receiver’s Report No. 3 of 2017 itself shows
service upon the applicant and his advocate which clearly shows
that the Court Receiver before filing the report has informed to the
applicant. The Ld. Advocate Mr. Arvind Giriraj argued that as the
report does not contain any relief or direction against them,
therefore, they are not supposed to appear in the Court. If, the
Court would issue any direction in favour of third party, the Court
should first add such person as a party to the litigation.
18. I have perused the documents pertaining to the proceedings
before the Court Receiver, Vakalatnama as well as Court Receiver’s
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Report No. 3 of 2017 which clearly shows that, the advance
intimation was given to the applicant and Mr. Allwyn Saldana was
appearing in the matter before Court Receiver, which clearly shows
that he was having personal knowledge of the matter. Therefore, I
am unable to accept the contention of Ld. Advocate for the
applicant that, the applicant was not given notice before passing
impugned order. Moreover, although, the applicant argued that
they have preferred instant Notice of Motion for recalling of
impugned order, but there is no pleading as such. I do not find
that the parties to the suit have mis-represented the Court. My
Predecessor passed an order on merits of the matter. In my view,
this Court can not set aside the impugned order. In my view, the
applicant is having remedy to challenge the impugned order before
appropriate Court. The instant Notice of Motion is not the proper
remedy to challenge the impugned order.
19. As I have already observed that, the applicant is having
knowledge of the proceeding and Mr. Allwyn Saldana had
represented the Trust since 2009, thus, he is having personal
knowledge of the proceeding. The Court Receiver also served its
report before filing of the same in the Court. Inspite of that, the
applicant chose not to appear before the Court and also after the
receipt of several intimation from the Court Receiver, he did not
comply the impugned order and he filed instant Notice of Motion
on false ground, protracting the entire matter. Thus, in my view,
the Notice of Motion not only deserves to be dismissed, but the
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cost of Rs. 10,000/- needs to be imposed on the applicant. Thus, I
proceed to pass the following order :
ORDER
1. Notice of Motion No. 1395 of 2018 is hereby dismissed with
cost of Rs. 10,000/-.
2. The applicant to pay the aforesaid cost within one month to
the defendant no. 1 and 2 who are entitle the same equally.
3. Notice of Motion No. 1395 of 2018 is disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 08.12.2020 Greater Bombay.
Dictated on : 08.12.2020
Typed on : 08.12.2020
Draft Submitted on : 08.12.2020
Checked on : 09.12.2020
Signed on : 09.12.2020
Uploaded on : 09.12.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/12/2020 at 11.00 a.m. (Ms. V. V. Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
08/12/2020
JUDGMENT/ORDER signed by P.O.
on
09/12/2020
JUDGMENT/ORDER uploaded on 09/12/2020
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