Naina Deepak Kamani Vs Sayed S. Mazam and Ors. — Civil Procedure and Limitation | Bombay HC (2009)

Naina Deepak Kamani Vs Sayed S. Mazam and Ors. — Civil Procedure and Limitation | Bombay HC (2009)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

COURT RECEIVER’S REPORT NO.37 OF 2009

IN
SUIT NO.2429 OF 1997

Naina Deepak Kamani.. Plaintiff
Versus
Sayed Sikander Moazam & Ors... Defendants

Mr.Sheetal Kumar with Mr.M.M.Patel i/b.
M.M.Patel & Co. for plaintiffs
Mr.Chandnani i/b. Lexim Associates for defendant
No.7
Mr.Pradeep Kadam for defendant Nos. 3 and 4
Mr.Sanjay Jain for Court Receiver,
Mr.Vinod Gaonkar, P.S.I. Worli Police Station
Mr.K.L.Vyas Court Receiver

CORAM :S.C.DHARMADHIKARI, J.
DATE:11th February 2009.

P.C.

.This is a Court Receiver’s report.

2. The Receiver seeks following directions:-

(a)ObstructionistandPolice

Authorities be dealt as per law for
causing obstruction in discharging
official duties by the representatives of
the office of Court Receiver to implement
the order of this Hon’ble Court;

(b)Date of appointment be fixed in
presence of parties to avoid further
delay in executing the order of this
Hon’ble Court;

(c)All parties,Advocates and
authorities be directed to cooperate with
the office of Court Receiver for
implementing the order of this Hon’ble
Court;

(d)Directions be given to Director
General of Police to give assistance to
the representative of the Office of Court
Receiver whenever they approach the

concern police station through out the
State of Maharashtra on the basis of any
orders passed to that effect by this
Hon’ble Court or City Civil Court;

(e)Any other reliefs as this Hon’ble
Court deems fit, just and proper;

(f)Costs of an incidental to this
application and order to be made thereon
is fixed at Rs.1000/- may come it from
the funds of the Court Receiver as
Receiver therein."

It is not necessary to make a detailed reference
to the facts as they are clear from the various
orders which are referred to in the Receiver’s
report and the affidavits that have been filed in
reply to this report.

3.Suffice it to state that the Receiver is

appointed as Receiver in respect of the flat more
particularly situated at and described as under:-

"Ram Niwas, Ground Floor, Sir

Pochkhanwala Marg, Worli, Mumbai 400 025"

4.The Court Receiver, by the initial order
and even by subsequent orders was directed to
appoint Defendant No.7 as his Agent on payment of
royalty. That royalty was determined but the
defendant No.7 is in arrears. The consequences
of execution of Agency Agreement stipulating
payment of royalty periodically are that in case
of default, the Agent of Court Receiver can be
removed.

5.Precisely, this is that direction that is
being sought. Repeatedly the Court Receiver is
prevented from implementing the orders of this
Court and performing his duty in law, is the
grievance in this report.

6.On 5th July 2007 in another Court
Receiver’s report an order was passed by this
Court. This Court has referred to all earlier
orders and has held that the Court Receiver is
bound to execute the orders and even the learned
Single Judge is so bound. The earlier Receiver’s
report was made absolute in terms of prayer
clause 19(a) and (b). The Court Receiver,
thereafter, made attempts to take possession as
is clear from the present report and my attention
is invited by Mr.Jain, appearing for Court
Receiver to para 9(a) of the present Receiver’s
Report. The said para reads as under:-

"9(a)On 4th December2007 the
representative of this Court Receiver
went on the spot but in entire process
and by lapse of time the police

authorities assured to cooperate and give
police assistance on next date as such

the appointment was continued on next
date i.e. 5th December, 2007.

".On 5th December 2007 when the
representative of the Court Receiver
visited the suit site along with police
authorities one Mr.Ganesh Kanojia, son of
Mr.Lakhan Kanojia, defendant No.7
forcibly man-handled Mr.Sachin Keluskar,
representative of the Court Receiver and
pushed him from the said flat in the
present of police authorities and in the
said circumstances there was Law and
Order situation arose but Police did not
take action against the said Mr.Ganesh
Kanojia. The police authorities on that
occasion also told that they will not
physically remove the said persons who
are found in the suit flat. The police
authorities further stated that they will
only protect the representative of the

Court Receiver, if physically
man-handled. In view of the aforesaid
situation the representative of the Court
Receiver could not implement the Court’s
order dated 5th July 2007."

7.When this report was placed before me on
the earlier occasion Mr.Chandnani who was
representing defendant No.7 in the suit sought to
appear on behalf of one Pushpa Tanajirao
Kadambande, plaintiff in R.A.E. St.No.1767 of
2000. He states that this lady is claiming
tenancy rights in the suit premises. Having
approached the Small Causes Court for protecting
her rights and possession so also being armed
with the order of the Appellate Bench of Small
Causes Court granting interlocutory reliefs. It
is submitted that the Court Receiver cannot take
any action which would prejudice her case in the
pending proceedings. Mr.Chandnani has taken me
through the orders which are annexed to the

affidavits of this lady viz., Pushpa Kadambande.

8.He submits that these orders are clear
inasmuch as the Court Receiver is a party to the
proceedings before the Small Causes Court and the
Appellate Bench of Small Causes Court having
restrained all respondents to the appeal/
defendants to the suit from disposing of and/or
taking peaceful and physical possession of the
premises from the plaintiff, Pushpa Kadambande,
this report should not be entertained and granted
or else this Court would be passing an order
defeating the rights of the said Pushpa
Kadambande in the suit premises.

9.Learned Counsel appearing for plaintiff
on the other hand invited my attention to the
order passed on 7th February 2000 wherein,
learned Single Judge of this Court (D.K.Deshmukh,
J) while deciding the Notice of Motion No.2438 of
1997 has dealt with self-same contentions. It is

stated by the learned Counsel that this lady
Pushpa Kadambande is none other but a person put
up by defendant No.7 soas to defeat the orders of
this Court. She has already filed an affidavit
which is referred to by Justice Deshmukh. She
has stated in this affidavit that she is not in
physical possession of the premises and has left
Mumbai for Indore. Reliance is placed upon the
findings of the learned Judge (D.K.Deshmukh, J)
in para 5 of his order dated 7th February 2000.

10.Reliance is also placed upon an order
passed by this Court in Notice of Motion No.1628
of 2007, wherein another learned Single Judge of
this Court (Smt.Ranjana Desai, J) dealt with an
application made by the very same Pushpa
Kadambande. Reliance is placed on specific
observations of the learned Single Judge in paras
7 to 10 of the said order.

11.I have heard both sides and perused the

report of the Court Receiver so also the orders
relied upon.

12.The learned Single Judge of this Court in
her order dated 4th October 2007/26th October
2007 has observed in paras 12 and 13 as under:-

"12.In my opinion, the present notice
of motion must be rejected only on the
ground that admittedly notice of motion
making almost identical prayers and on
same grounds of fraud and fabrication of
documents taken out by defendant No.7
being Notice of Motion No.696 of 2007 was
rejected by Justice A.M.Khanwilkar on
28/3/2007. The case of the applicant is
that defendant No.7 is like her son. She
claims to be a tenant of the said flat
along with defendant No.7. Affinity of
applicant and defendant No.7 is also
clear from the fact that the same

advocate is representing both of them.
The main prayer in that motion was that
the suit be dismissed because the
applicant who is a necessary party is not
made a party. In the affidavit in
support, defendant No.7 had, inter alia,
alleged that order dated 7/2/2000 passed
by Justice Deshmukh appointing Court
Receiver and order dated 3/7/2000 passed
by the Division Bench are obtained by the
plaintiff/ director of defendant No.1 by
practicing fraud on the Court. On
28/3/2007, Notice of Motion No.696 of
2007 was disposed of by Justice
A.M.Khanwilkar by passing the following

order:-

".Therefore, the allegation of
fraud was rejected by this Court. This

Court observed that if any further
application is moved at the instance of
defendant No.7, it may consider imposing
exemplary costs."

"13.Defendant No.7 carried an appeal
before the Division bench of this Court.
By a speaking order dated 18/4/2007, the
Division Bench rejected the said appeal.
I may quote the relevant observations of
the Division Bench.

13.Para 15 of Her Ladyship’s order makes it
clear that the applicant i.e. Pushpa Kadambande
before her and defendant No.7 to the present suit
are represented by the same Advocate. Pushpa
treats defendant No.7 as her son. Pushpa and
defendant No.7 claim to be the tenants of the
flat. However, because defendant No.7 could not

get the relief in his favour, the applicant
Pushpa preferred the notice of motion which was
dealt with by Her Ladyship. This is an admitted
fact. She has dealt with the allegations of
fraud and has rejected them by assigning reasons.
It is clear from Her Ladyship’s order that the
applicant has not been able to substantiate all
allegations including her claim of tenancy. The
learned Judge was inclined to saddle her with
costs but warning her about her conduct, Her
Ladyship refrained from doing so. Thus, her
motion was rejected. The prayer for staying the
order was also rejected. Receiver’s report
points out that an appeal was preferred against
this order being Appeal Lod.No.893 of 2007. The
appeal came up before the Division Bench of this
Court, when the applicant/ appellant Pushpa
Kadambande was directed to deposit a sum of
Rs.7.5 lakhs within one week by an order dated
6th December 2007 by the Division Bench. The sum
is not deposited and her appeal is dismissed on

18th June 2008 by a Division Bench of this Court
(See Exh.H to the affidavit of D.S.Chandnani)
Another appeal which was preferred being Appeal
Lod.No.795 of 2007, has also been dismissed as
withdrawn. All these orders are passed after the
order of the Appellate Bench of the Court of
Small Causes dated 28th August 2002 in Appeal
No.46 of 2001.

14.The Receiver points out that similar
attempts were made by defendant No.7 and his
Notices of motions have been dismissed so also
the appeal therefrom as narrated in paras 14 to
16 of his report. Thus, the orders of this Court
have become final. They are binding on the
Receiver and he must enforce them. He has to
take possession of the premises and abide by
further directions of the Court.

15.It is in these circumstances that the
Court Receiver prays that all obstructions to

taking possession put up by the said Pushpa and
defendant No.7 be removed. Police assistance be
given to him soas to carry out and implement
orders of this Court.

16.In A.I.R. 1977 S.C. 2302 (Everest Coal
Company Pvt.Ltd. Vs. State of Bihar & Ors),
dealing with the status and position of the Court
Receiver, the Supreme Court has observed thus:-

"4.... When a Court puts a receiver
in possession of property the property
comes under Court custody, the receiver
being merely an officer or agent of the
Court. Any obstruction or interference
with the Court’s possession sounds in
contempt of that Court. Any legal action
in respect of that property is in a sense
such an interference and invites the
contempt penalty of likely invalidation
of the suit or other proceedings. But,

if either before starting the action or
during its continuance, the party takes
the leave of the Court, the sin is
absolved and the proceeding may continue
to a conclusion on merits."

.... Any litigative disturbance of the
Court’s possession without its permission
amounts to contempt of its authority;
and the wages of contempt of court in
this jurisdiction may well be viodability
of the whole proceeding."

17.Thus, there is no substance in the
contentions of Mr.Chandnani. This is a
Receiver’s report for directions. Mr.Chandnani
desires to contest it as if it is another round
of proceedings in the suit. Same pleas are
reiterated. They have been already considered
and rejected. There is no declaration of Tenancy
granted by any court till date. Hence, the law

laid down in Anthony Leo Vs. Nandlal Bal Krishan
reported in A.I.R. 1997 S.C. 173 will not
apply. In any event, I cannot reopen the
controversy already concluded by orders of this
Court. They bind everybody. Considering that
the Court Receiver is appointed to preserve and
protect the subject matter of litigation and his
possession is for and on behalf of parties to the
litigant, all concerned have to render assistance
to the Court Receiver. Ultimately, he is an
officer of the Court and the property is custodia
legis. No interference with the exercise of
powers that are conferred upon a Court Receiver
by the Court appointing him can be thus
tolerated. Ultimately, the orders are passed by
the Court for protecting and preserving the
subject matter of litigation and such orders have
to be implemented or else the litigant public is
likely to lose its faith and trust in the
Administration of Justice. When orders of the
Court have been passed, all concerned including

police authorities must render their assistance
to implement them. They have to make available
the necessary resources and assistance including
for using such force as is permissible in law to
implement the orders of the Court. It need not,
therefore, be emphasised that the grievance made
by the Receiver against the police machinery in
this case shows a serious lapse on the part of
concerned police station. Since the police
officer is present in court and has assured that
hereafter no complaints would be received with
regard to the lack of assistance by the police
that I refrain from passing any orders and take
any action.

18.This is the last time that the Court will
tolerate such a laxity on the part of the police
machinery. Equally, if parties to the litigation
are responsible for not cooperating with the
Receiver or resisting and obstructing him, then,
even they will have to be dealt with strongly.

This is a last opportunity granted to the
applicant Pushpa and defendant No.7 to comply
with the orders of this Court. If they do not
cooperate and hand over possession, then, it is
permissible for the police to use such force as
is necessary and remove them from the premises so
that the Court Receiver can take possession
thereof.

19.The Court Receiver’s report is thus made
absolute in terms of prayer clause (b). It is
directed that all parties shall remain present at
the site on 16th February 2009 at 4.30 p.m. and
hand over peaceful and vacant possession of the
premises to the Receiver. Needless to state that
the reference to term "parties" would include,
the applicant Pushpa Kadambande. Further it is
needless to add that if either defendant No.7 or
Pushpa Kadambande or anybody else at site resists
or obstructs the Court Receiver in any manner in
taking possession, they shall be removed from the

site/ premises by the police. Court Receiver
shall be rendered all assistance for carrying out
this order by the concerned police station.

20.Court Receiver and the concerned police
station to submit their report of compliance
within ten days. Court Receiver’s report is
disposed of accordingly.

(S.C.Dharmadhikari, J)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COURT RECEIVER’S REPORT NO.37 OF 2009
IN
SUIT NO.2429 OF 1997

Naina Deepak Kamani.. Plaintiff
Versus
Sayed Sikander Moazam & Ors... Defendants

Mr.Sheetal Kumar with Mr.M.M.Patel i/b.
M.M.Patel & Co. for plaintiffs
Mr.Chandnani i/b. Lexim Associates for defendant
No.7
Mr.Pradeep Kadam for defendant Nos. 3 and 4
Mr.Sanjay Jain for Court Receiver,
Mr.Vinod Gaonkar, P.S.I. Worli Police Station
Mr.K.L.Vyas Court Receiver

CORAM :S.C.DHARMADHIKARI, J.
DATE:12th February 2009.

P.C.

.After this order was dictated in Court
yesterday i.e.11th February 2009 and was
pronounced at 5.00 p.m., in the presence of

parties, directions were given to Court Receiver
to take possession. However, the matter was
mentioned today once again and an affidavit of
Mrs.Pushpa Kadambande is filed wherein, she
purports to undertake to this Court that she
would hand over vacant and peaceful possession by
15th March 2009 subject to her rights.

2.Mr.Chandnani prays that this Affidavit
cum-Undertaking be taken on record and my order
passed yesterday be stayed till 15th March 2009.

3.The request is opposed by the learned
Counsel appearing for plaintiffs and she invites
my attention to the strictures and remarks passed
in the orders of this Court against defendant
No.7 and Mrs.Pushpa Kadambande.

4.Having considered these remarks and
strictures and the manner in which the Receiver
has been obstructed from taking possession in the

peculiar facts of this case, I do not see any
reason to stay my order. More so, when neither
defendant No.7 nor Mrs.Pushpa Kadambande is ready
and willing to deposit any sums and comply with
the terms and conditions of the Agency Agreement.
Accordingly, stay is refused.

( S.C.Dharmadhikari, J)