Final Order 1

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Pdf Text: Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 1
MHCC010113872022
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
ORDER ON MISC. APPLICATION NO.194 OF 2022
IN
MISC. APPLICATION NO. 12 OF 2020
IN
S. C. SUIT NO.9516 of 1974.
(DISPOSED OFF )
Board of Trustees of the Port of Mumbai ....Plaintiff.
V/s.
J.R. Nazir & Ors. ..Defendants.
Appearances :-
Adv. Rupa Basu for plaintiff.
None for defendant.
Coram : Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 18/07/2023.
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Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 2
ORAL ORDER
This Misc. Application was filed on 10th December, 2019
seeking direction that the Court may order the Court Receiver to
prepare summary of the account statement connected with subject
matter of the Suit No. 9516 of 1974 and to direct defendants to make
monthly payment to the Court Receiver and make such payment from
time to time with interest accrued thereon to the account . The plaintiff
who has moved this application also prayed to the court that the
receiver be directed to release an amount of Rs.17,51,30,782.72/- in
favour of the plaintiff..
2. During the pendency of the application No.12/2020 as per
direction of the Court given from time to time the court receiver filed
statement of account on record. Thereafter, the plaintiff moved
Miscellaneous Application on 10.10.2022 whereby he sought the relief
that the Court may direct the office of the Court receiver to prepare the
summary account of the statement reflecting the amount received by
him from defendants in connection with the suit premises and the Court
receiver be directed to withdraw and transfer the amount to the
plaintiff. The plaintiff also prayed for direction be given to the
defendant to deposit all payments directly to the plaintiff’s account.
3. Prior to the discuss the merit of the aforesaid application, it
is necessary to note that the plaintiff had instituted Suit No.9516 of
1974 for recovery of possession of the immovable property given by it
on lease to one Jimmy Ratanji Nazir and other defendants which is
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Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 3
described in Exh A attached to plaint therein. (In short ‘suit premises’).
It was the case of the plaintiff that the term of lease was for 30 years
which ended on 31.07.1991. It was also its case that as per terms and
condition defendants were liable to pay rent as per the terms of the
lease deed. Thereafter, the plaintiff decided to construct the additional
structure on the existing suit premises. Thereafter the dispute had
arisen in between the plaintiff and defendants. Hence, instituted the
aforesaid suit. This Court vide Judgment dated 21.12.2017 returned the
plaint to the plaintiff under Order VII Rule 10 of the Code of Civil
Procedure (In short ‘Code’) to present before The Small Causes Court
Mumbai. Now it is necessary to see whether both aforesaid applications
are maintainable and whether this Court has jurisdiction to grant any
relief as prayed for
4. It is the case of the plaintiff and fact that the Court receiver
was appointed as per order of the Court dated 02.02.1977 and pursuant
to the order of Court, the Court Receiver has been collecting the
compensation of amount from the defendants against the suit premises.
As aforesaid the plaint is returned to the plaintiff to present before the
Small Causes Court. It is contention of the plaintiff that the Hon’ble
High Court vide order dated 10.11.2008 allowed the plaintiff to
withdraw the amount deposited with the Court Receiver along with the
interest at the rate of 4% pa. The plaintiff has also contends that the
order of Hon’ble High Court dated 10.11.2008 is filed on record at
Exh.B. He further contends that in pursuance of Order Exh. B the
plaintiff approached the Court Receiver on 10.06.2013 to release the
amount. However, the Court receiver informed the plaintiff that
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Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 4
Hon’ble High Court has allowed his office to release amount accrued till
a day fixed and there is no further order to release the amount
deposited thereafter with Court Receiver office. Reply given by the
Court receiver is filed by the Court receiver is at Exh.C. Hence, these
applications are filed.
5. It is submission of the Ld. Advocate for the plaintiff that
there is no dispute that the plaintiff is owner of the suit premises and
defendants are bound to pay rent amount in form of compensation as
they are in possession over the Suit premises. As per report of the Court
Receiver the amount of Rs.17,51,30,782.72 is in liquidated form. The
suit is disposed of by this Court on 21.12.2017. The Court has directed
the plaintiff to present the plaint before the Small Causes Court.
However, the plaintiff has preferred first appeal bearing No.(L) 14636
of 2018 before the Hon’ble High Court against the impugned order
dated 21.12.2017 whereby the plaint is returned to the plaintiff to
present before the Small Causes Court. The Court receiver was
appointed by the order of the this Court. This Court has ample power to
direct the Court Receiver to permit the plaintiff to withdraw the amount
lying with him or the Court may direct the Court Receiver to transfer
the amount lying with him in liquidated form. He also argued that in
view of the observations of Hon’ble High Court in Atul D. Soni and
Another V/s. B.M.Choksey and Others, [1998(3) Mh.L.J.]. The Court
receiver to permit the plaintiff to withdraw the amount lying with him.
Hence, prayed to allow both applications.
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Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 5
6. It is fact that the suit is disposed off on 21.12.2017
whereby the plaint which is returned to the plaintiff under Order VII
Rule 11 of the Code to present before the Small Causes Court. In stead
of following direction of the Court, the plaintiff being aggrieved
preferred an appeal before Hon’ble High Court which is pending.
Admittedly, the Court receiver was appointed by the Hon’ble High Court
prior to the suit was transferred to this Court on enhancement of the
pecuniary jurisdiction of the Court. Therefore, there can not be two
view as to appointment of the Court receiver that it was appointed by
this Court. Now, peculiar question arise whether this Court has
jurisdiction to entertain these applications, particularly when the plaint
is returned to the plaintiff to submit before Small Causes Court and the
plaintiff has preferred an appeal before Hon’ble High Court which is
pending.
7. In Atul D. Soni and Another V/s. B.M.Choksey and Others,
(supra) has observed that the Court Receiver stands discharged only
after he put the property to its status quo ante-position unless otherwise
directed by the Court or unless the Court receiver required to do
something anew in respect of the property unless and until the receiver
has submitted his account approved by the Commissioner of accounts.
The Hon’ble High Court also preferred the decision of the Hon’ble Apex
Court in Hiralal Patni Vs. Loonkaren Sethia AIR (1962) SC 21. The
observation of Hon’ble High Court in Para No. 16 are relevant Hence,
reproduced as follows :
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Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 6
“16. Supreme Court decision in Hiralal Patni
vs. Loonkaren
Sethia, AIR (1962) SC 21 is referred to in this book on page 523
and the following guidelines laid down by the Supreme Court
have been quoted as under :
“(1) If a receiver is appointed in a suit until judgment,
the appointment is brought to an end by the Judgment to
in the action.
(2) If a receiver is appointed in a suit without his tenure
being expressly defined, he will continue to be a receiver
till his is discharged.
(3) But after the final disposal of the suit as between the
parties to the litigation, the receiver’s function are
terminated; he would still be answerable to the Court as
its officer till he is finally discharged.
(4) The Court has ample power to continue the
receiver ever after the final decree if the exigencies of the
case so require.”
8. Considering the dictum of the Hon’ble Supreme Court in
aforesaid decision, it is essential to note that it dealt with appointment
of the Court Receiver and the termination of its duties. It is observation
of the Hon’ble Supreme Court that the appointment of Court receiver
remain in force until the judgment is pronounced, or its appointment is
brought to the end by judgment in action. However, the receiver is
answerable to the Court till he is discharged from his duties. It means
the Court receiver is answerable to the Court for his duties even though
the suit is disposed off.
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Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 7
9. In the present case, the suit is disposed off vide order dated
21.12.2017 and the plaint is returned to the plaintiff to present before
Small Causes Court. The plaintiff has preferred an appeal before the
Hon’ble High Court which is pending. It means the suit is not disposed
off finally. It is needless to say that the appeal is continuation of suit.
The matter is sub-judice before the Hon’ble High Court. If the plaintiff
had not preferred an appeal or not presented plaint before Small Causes
Court, then it could be said that the suit is disposed off finally and
decision whereby the plaint is returned to the plaintiff to present before
Small Causes Court has attained the finality. In such circumstances, this
Court would have jurisdiction to direct the Court receiver and to pass
the necessary order in respect of the his duties and liabilities.
Therefore the Observation of Hon’ble High Court in Atul D. Soni and
Another V/s. B.M.Choksey and Others,(supra) are not squarely
applicable to the case in hand.
10. At the cost of repetition, it is significant to note that after
return of the plaint vide order dated 21.12.2021, this Court ceased to
exercise the powers over the Court receiver as the first appeal is
pending before the Hon’ble High Court. The plaintiff has not presented
plaint before Small Cause Court. This Court vide order dated
21.12.2017 has directed that the appointment of the Court Receiver as
per order dated 02.02.1977 shall continue till plaintiff obtains necessary
order from The Small Causes Court after plaint is presented to it. Now
the matter is presented before The Hon’ble High Court, in such case it is
imperative on the part of the plaintiff to seek the relief or necessary
direction from the Hon’ble High Court. Therefore, it is held that both
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Order on Misc. Appln No.194 of 2022
in Misc. Appln No. 12 of 2020 8
applications are not maintainable before this Court. In the result
following order is passed :
ORDER
Misc.Application Nos.12 of 2020 alongwith Misc. Application No.
194 of 2022 stands rejected and disposed off accordingly.
(Dictated and pronounced in open Court )
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:17.07.2023 Greater Bombay (CR 59)
Declared on : 17.07.2023
Dictated on : 17.07.2023
Transcribed on : 09.08.2023
Checked on : 17.08.2023
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.08.2023 at 2.45 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 17.07.2023
Order signed by P.O. on 17.08.2023
order uploaded on 17.08.2023
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