Disposed

Amod N. Mehta and 4 Ors. v. Ashok N. Mehra and Anr.

Bombay HC4 May 2012NMS/2003/2011

Case brief

AI extract

What is this about?

In a suit under Section 6 of the Specific Relief Act, the High Court appointed a Court Receiver and granted injunctions regarding property possession disputes involving family partition, mortgage assignments, and alleged illegal dispossession by a defendant who obtained symbolic but not physical possession via a tribunal.

What did the court decide?

Court Receiver appointed; injunction granted; parties directed to bid for agency of receiver with security and royalty.

Amod N. Mehta and 4 Ors. Vs Ashok N. Mehra and Anr. — Property and Title | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

NOTICE OF MOTION NO. 2003 OF 2011 IN

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SUIT NO. 2879 OF 2011

¶7

Amod Nandkishore Mehra, of Mumbai, ) Indian Inhabitant, residing at 301, Shiv ) Shakti, 11, JVPD Scheme, N.S.Road No.10, ) Opposite Haveli Mandir, Juhu, ) Mumbai – 400 049 )

¶8

Vijanti Amod Mehra, of Mumbai, Indian) Inhabitant, residing at 301, Shiv Shakti, ) 11, JVPD Scheme, N.S.Road No.10, ) Opposite Haveli Mandir, Juhu, ) Mumbai – 400 049 )

¶9

Sakshi Rajesh Raheja, of Mumbai, ) Indian Inhabitant, residing at E/5, New ) Chandra Society, Jeevan Nagar, Off. Veera ) Desai Road, Andheri (W), Mumbai 400 053)

¶10

Gitanjali Roshan Murgai, of Mumbai ) Inhabitant, residing at Chanchal Smruti ) Bldg. 6^th Floor, G.D.Ambedkar Marg, Opp. ) Wadala Udyog, Mumbai 400 031. )

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Gautam Amod Mehra, of Mumbai,Indian) Inhabitant, residing at 301, Shiv Shakti, ) 11 JVPD Scheme, N.S.Road No.10, Opp. ) Haveli Mandir, Juhu, Mumbai – 400 049. ) ..... Plaintiffs

VERSUS

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Ashok Nandkishore Mehra of Mumbai, ) Indian Inhabitant, residing at 6B, Ameeyanand) Society, Kashinath Dhruru Road, Near Kirti ) College, Prabhadevi, Mumbai 400 028 )

¶17

Union Bank of India, Princess Street ) Branch being a public sector bank having ) its office Pathakwadi, 2^nd Floor, Devkaran ) Mansion Compound, Mumbai 400 079 ) ..... Defendants

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Mr.Pravin Samdani, Senior Advocate with Ms.Bindi Dave, Mr.Pradeep Bakhre, i/b. Wadia Ghandy & Co. for the Plaintiffs.

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Mr.Shyam Mehta, Senior Advocate with Dr.Birendra Saraf, Mr.Paresh C.Mankad and Mr. Nihar P.Mankad, i/b. Mr.Pravin D.Kadam for Defendant No.1.

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Mr.Sanjay Jain with Mr.N.S.Fadia, i/b. Mr.Shashank N.Fadia for Defendant No.2.

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CORAM : R.D. DHANUKA, J. RESERVED ON : 18^th APRIL, 2012 PRONOUNCED ON : 4^th MAY, 2012

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ORAL JUDGMENT

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The Plaintiffs have filed the suit under Section 6 of the Specific Relief Act, 1963 for an order and decree against Defendant No.1 for restoration and handing over to the Plaintiffs the quiet, vacant and peaceful possession of the suit property bearing CTS No. 69/21 situated at L.B.S.Marg, Vikhroli (West), Mehra Estate, Mumbai 400 079. The Plaintiffs have taken out this Notice of Motion for appointment of the Court Receiver in respect of the suit property with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including the power

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to take forcible physical possession of the suit property from Defendant No.1 with the help of police, to handover possession of the suit property to the Plaintiffs and has also applied for injunction against the Defendant No.1, his servants and/or agents in respect of the suit property .

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Some of the relevant facts which emerge from the pleadings and documents filed by the parties are thus :-

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(a). Plaintiff No.1 is brother of Defendant No.1 and they are

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son of one Mr.Nandkishore Lalchand Mehta. The suit property forms part of a larger property bearing C.T.S.Nos. 69 and 69/1 to 69/52 which was originally owned by an undivided joint Hindu Family consisting of (1) Lalchand Hukumchand Mehra, (2) Daulatram Hukumchand Mehra, (3) Kalicharan Lalchand Mehra, (4) Om Prakash Lalchand Mehra, (5) Nandkishore and (6) Jugalkishore Lalchand Mehra. In the month of November, 1945 the said larger property was partitioned between the aforesaid members of Mehra family as recorded in the Deed dated 9^th February, 1961 and was registered by Deed of Confirmation dated 1^st December, 1963. Under the said Deed, the property bearing C.T.S.No. 69/8 to 69/23 came

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to the share of the members of the Nandkishore Mehra Group consisting of his wife and their children and their families and vested in them. The Plaintiff and Defendant No.1 belong to the said Nandkishore Mehra group.

¶35

(b). The members of the Mehra group were parties to a suit bearing No. 3286 of 1988 filed in this court. The parties thereto filed the consent terms duly signed by the parties thereto and their advocates. The said consent decree has been registered. Under the said Consent Terms, the property of Nandkishore Mehra group came to be further divided. The suit property demarcated and marked as 'A' in the plan annexed to the said Consent Terms came to the share of the Plaintiff Nos. 2 to 5 herein. The Portion demarcated and marked as 'D' in the said plan annexed to the Consent Terms came to the share of the Defendant No.1 and his family members. Clause 3 of the said Consent Terms provides as under :-

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Agreed and declared that the area coming to the shares of the respective parties will be the absolute property of such party and such party shall be entitled to sell, assign, exchange and/or mortgage and/or create charge and/or

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use the same for themselves and/or create tenancy and/or part with possession thereof on such terms and conditions as they may deem fit.

¶41

(c). It is the case of the Plaintiff that since 15^th December,

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1988, the Plaintiffs have been in possession of the suit property and have licenced out a portion thereof from time to time. Last such licence granted by the Plaintiffs in respect of the part of the suit property was in favour of one Fortune Cars Pvt. Ltd., and expired on 31^st January 2011. It is the case of the Plaintiffs that the Plaintiffs had their office on a portion of the suit property since 15^th December 1988 and they continued to be in possession till 9^th March, 2011 when they were dispossessed unlawfully by Defendant No.1. It is the case of the Plaintiffs that they have been paying electricity charges, telephone charges, water charges etc. for the suit property regularly.

¶43

(d). It is the case of the Plaintiffs that in the year 1980 Defendant No.2 bank filed three suits before this Court against Ramchand Silk Mills, Usha Prints (India) Pvt. Ltd., Prabhat Textile Industries for recovery of the monies wherein

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Defendant No.1 was impleaded as guarantor alongwith other guarantors. Defendant No.1 was also mortgagor alongwith Nandkishore Mehra in respect of various properties including the suit property in favour of the Defendant No.2 bank. On 13^th December, 1983, this Court decreed those three suits filed by Defendant No.2 bank against various parties. Decrees passed by this Court in these suits came to be transferred to Debt Recovery Tribunal, Mumbai, subsequently.

¶48

(e). It is the case of the Plaintiffs that on 16^th April, 2009 the Recovery inspector of the Debt Recovery Tribunal attempted to take possession of the Nandkishore Mehra group property but could not take possession of the larger property including the suit property. The recovery inspector prepared panchanama in respect of such attempt of taking possession on 16^th April, 2009. In the panchanama, it was recorded that he alongwith Government approved Valuer went to the office of the Plaintiff No.1 at Mehra Estate. It was recorded that Plaintiff No.1 conveyed his inability to help the bank officer stating that he was the owner of the one office premises and was not able to specify the survey numbers and its parts as specified in the

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order passed by the Debt Recovery Tribunal. In the said Panchanama it was also recorded that the bank officer could not identify the suit property for attachment, possession and valuation and therefore the order passed by the Debt Recovery Tribunal could not be executed on 16^th April, 2009. The copy of the said panchanama is annexed to the plaint. It appears that by an order dated 26^th May, 2010, Tribunal appointed Mr.G.V.Shinde, Senior Member of the Bank as Receiver and was directed to take forcible possession of the mortgaged property with the help of concerned police station.

¶53

(f). On 15^th September, 2010, the said Receiver addressed a letter to the Recovery Officer of Debt Recovery Tribunal informing that the share of various members of Mehra family had undergone change and new survey numbers had been allotted in place of old survey numbers and that he was in process of obtaining new survey numbers from City Survey Office for proper identification of the property in the suit. He requested to give further reasonable time to enable him to identify and take possession of the suit property as per new survey numbers. The said letter was submitted to the Debt

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Recovery Tribunal on 23^rd September, 2010. On 25^th

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September, 2010, the Receiver has alleged to have addressed a letter to the Recovery Officer informing that he visited the mortgage property on 25^th September, 2010 when Defendant No. 1 and his Manager were present. He alleged that he had taken possession “on as is where is basis” on 25^th September, 2010.

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(g). On 7^th December, 2010 the Defendant No.1 who was 3rd Defendant in the said proceeding bearing number R.P. 154 of 2002 before the Debt Recovery Tribunal II, through his advocate applied for preponement of the proceedings before the Recovery Officer of the Debt Recovery Tribunal II to 9^th December, 2010 at 2.30 p.m. to enable the Defendant No.2 bank to make necessary application to withdraw the said proceedings as the Defendant No.3 therein had paid the settled amounts. It is common ground that though on the date of making such request by the Defendant No.1 herein for preponement of the proceedings, Plaintiff No.1 was already brought on record as one of the Defendant in the said proceedings upon demise of his mother who was one of the

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Defendant to the said proceedings, no notice and/or intimation was given to the Plaintiff No.1 for such preponement of the proceedings and/or regarding settlement of the decreetal amount by Defendant No.1 in favour of the Bank.

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(h). On 9^th December, 2010, Defendant No.2 bank filed an application before Debt Recovery Tribunal II stating that Defendant No.1 herein had approached the bank with proposal with one time settlement and bank was ready and willing to accept one time settlement proposal and an amount of Rs. 2 crores and is agreeable and/or to raise the attachment, discharging the Court Receiver, hand over the original title deed submitted to the bank at the time of creating equitable mortgage on 30^th December, 1969 and hand over the possession alongwith the transfer of mortgage filed by the assignee. In para 6 of the said application, it was stated that in view of the receipt of Rs. 2 crores as one time settlement, the bank shall handover the possession on ‘as is where is basis’ of the immoveable property to Defendant No.1 herein. It was stated that Defendant No.1 herein who had

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paid and deposited a sum of Rs.2 crores by a cheque and the said amount was credited against the recovery certificate issued in three cases is R.P.NO. 154 of 2002, 456 of 2004 and 458 of 2004. The bank applied for various reliefs in the said application such as raising and lifting of attachment, discharge of the receiver appointed by an order dated 26^th May, 2010, handing over the possession of the immoveable property to Defendant No.1 herein, handing over of title deed to Defendant No.1, closing of recovery proceedings against Defendant No.1 therein or in the alternative to withdraw the recovery proceedings. It is common ground that no such application came to be served upon the Plaintiffs by the bank. From the Roznama in R.P. NO.154 of 2002 produced in this proceedings, it is clear that the Debt Recovery Tribunal II allowed the said application on 9^th December, 2010 in terms of prayers (a) to (d) of the said application dated 9^th December, 2010 filed by the bank. By the said order, attachment dated 24^th September, 2002 was raised, Court Receiver was discharged and was directed to handover possession of the property to the Defendant No.1 herein. It was further directed to handover the original title deed of the suit of the property

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to Defendant No.1.

(i). It is the case of the Plaintiff that the said licencee

¶74

M/s.Fortune Cars Pvt. Ltd. who was occupying portion of the said premises as licencee under the registered agreement of leave and licence vacated the said premises on 31^st January 2011. On 3^rd February, 2011, the Defendant No.1 and his family members through their advocates issued a public notice in the newspaper in respect of the plot of a land being piece and parcel of a larger plot of land 69/13, 69/15, 69/17 and 69/18 with the structures (temporary sheds) standing thereon admeasuring 1449.12 sq.mtrs. equivalent to 15598.32 sq.ft. situated at L.B.S.Marg, Vikhroli claiming the ownership pursuant to the decree dated 15^th December, 1998 under the consent terms filed in suit NO. 3286 of 1988 before the Bombay High Court. By the said public notice, objections were invited from the members of public in respect of the said property including suit property.

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(j). On 5^th February, 2011, the Defendant through his

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advocate addressed a letter to the Plaintiff No.1 informing about one time settlement arrived at between the bank and

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Defendant No.1 and that on payment of Rs. 2 crores to the bank, the bank by Deed of Assignment has assigned right, title and interest in respect of the said larger property in his favour and has also handed over possession thereof alongwith title deed, documents to him. Defendant No.1 called upon the Plaintiff No.1 and others not to deal in any manner with the larger property including the suit property.

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(k). It is the case of the Plaintiffs that by a letter dated 9^th February, 2011, 14^th February, 2011, 22^nd February, 2011 and 25^th February, 2011, the Plaintiffs denied the allegations made by the Plaintiff No.1 and requested for inspection of various documents referred to and relied upon by Defendant No.1 in his advocate’s letter dated 5^th February, 2011 but no such inspection came to be given.

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(l). The Defendant No.1 issued a public notice dated 28^th February, 2011 in the ‘Free Press Journal’ dated 2^nd March, 2011 Mumbai edition claiming that pursuant to the order passed by Debt Recovery Tribunal, Defendant No.1 had acquired right, title and interest and possession of the larger

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property.

(m). The Plaintiffs by letter dated 3^rd March, 2011 responded to the said public notice dated 28^th February, 2011 published on 2^nd March, 2011 and requested for response to the querry raised by Plaintiff No.1 by four earlier letters and once again asked for the inspection of the documents. On 8^th March, 2011, Plaintiff also issued a public notice in the ‘Free Press Journal’ informing the members of the public that if any person was mislead by Defendant No.1 and choses to deal with him in respect of the immoveable property mentioned in the schedule thereto, then not only will such deed be declared null and void but he or she will also liable for criminal prosecution. In the said public notice, the Plaintiffs also denied the contents of the public notice dated 2^nd March, 2011 issued by Defendant No.1 in ‘Free Press Journal’.

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(n). It is the case of the Plaintiff that on 9^th March, 2011 when the Plaintiff No.1 went to his office which is in the suit property, he was prevented entry by about 10 – 15 goons/antisocial elements claiming to be Defendant No.1’s

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men and placed locks at the entrance/gates of the suit property and threatened and/or prevented entry to the Plaintiff. Plaintiff NO.1 filed complaint being N.C.NO. 544 of 2011 with the Park Site Police Station on 9^th March, 2011 itself. On 12^th March, 2011, Defendant No.1 put up his sign board in the suit premises. The Plaintiffs also in or about 11^th March, 2011 filed an application under Section 145 (1) of the Criminal Procedure Code before the Learned Metropolitan Magistrate, 34^th Court Vikhroli being Misc. Application No. 72/N/11 for appropriate action for illegal dispossession of the Plaintiffs from the suit premises.

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(o). Plaintiffs’ through their advocates’ letter dated 12^th April, 2011 to the Defendants’ herein denied the right, title and interest and possession of Defendant No.1 and called upon him to redeem into the mortgage in respect of the suit property and also the larger property and to cancel the purported deed of assignment by and between Defendant No.1 and the Bank. The Plaintiffs by their advocates’ letter dated 28^th April, 2011 to the Defendants herein alleged that the Plaintiffs have been dispossessed by the Defendant No.1 from

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the suit property on 9^th March, 2011 without their consent and

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without due process of law. The Plaintiffs called upon the Defendant No.1 to restore quiet, vacant and peaceful possession to the plaintiffs. The Plaintiffs by their advocates’ letter dated 21^st April, 2011 replied to the letter dated 12^th April, 2011 addressed by the Plaintiffs’ advocate and denied the contents thereof. The Plaintiffs by their advocates’ letter dated 25^th April, 2011 to the advocate of the Defendant No.1 requested for inspection of various documents referred to and relied upon by Defendant No.1 in his advocates’ letter.

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(p). The Plaintiffs thereafter filed this suit on 28^th April, 2011 for seeking possession of the suit property. By an ad-interim order dated 30^th August, 2011, S.J.Vazifdar J. observed that very strong prima facie case has been made out by the Plaintiffs for being put in possession of the property even at the ad-interim stage and appointed Court Receiver, High Court, Bombay as a receiver in respect of the suit property and directed the Court Receiver to invite offers and appoint an agent in respect of the suit property on leave and licence basis

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on the market value and granted liberty to the parties to bid

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for the agency of the Court Receiver. The Court Receiver was directed not to insist for any security but directed only to insist for payment of royalty.

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Being aggrieved by the said ad-interim order dated 30^th August, 2011 passed by S.J.Vazifdar, J the Defendant No.1 herein filed an appeal being Appeal (L) No. 625 of 2011. By an order dated 24^th November, 2011 passed by the Division Bench, by consent of parties ad-interim order dated 30^th August, 2011 passed by the Learned Single Judge in Notice of Motion No. 2003 of 2011 came to be set aside. The Learned Counsel appearing for the Defendant No.1 made a statement that Defendant No.1 shall not alienate or create third party right in the suit property without seeking leave of the Learned Single Judge. Accordingly, adinterim injunction in respect of the suit property against Defendant No.1 came to be granted. Defendant No.1 has been also directed to maintain status quo in relation to the suit property until further orders passed by the Learned Single Judge.

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Shri Samdhani, the Learned Senior Counsel appearing on behalf of the Plaintiffs makes the following submissions :-

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(i). Plaintiff Nos.2 to 5 became owner of the property

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marked as ‘A’ in the plan annexed to the consent terms

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and consent decree in Suit No.3286 of 1988. Similarly Defendants also became owner in respect of the other part allotted to them as per the said consent terms.

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(ii). The Plaintiffs had given portion of the suit property

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on leave and licence to Fortune Cars Pvt. Ltd. and the same continued till 31^st January, 2011 when the said licencee vacated. In support of the said plea, the Learned Counsel relied upon the registered Leave and Licence Agreement, correspondence, copies of various electricity bills for about 8 months showing the consumption of electricity. The electricity meter stands in the name of Usha Prints (India) Pvt. Ltd. It is the case of the Plaintiff that all such bills were paid by the Plaintiffs by cheque. The Learned Counsel also placed reliance on the averment made in the affidavit in reply filed by Defendant No.1 that meters standing in the name of Usha Prints (India) Pvt. Ltd. were situated at the suit property. The Learned Counsel emphasized that it was not the case of Defendant No.1 that payment in respect of such electricity bills were made by Defendant No.1.

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(iii). It is submitted that it was not the case of the Defendant no.1 that the suit property was at any point of time prior to 9^th March, 2011 was in joint possession of the Plaintiff and Defendant No.1 or was in exclusive possession of Defendant no.1. It is submitted that admittedly Defendant No.1 has claimed possession of the suit property only by virtue of the order dated 9^th December, 2010 passed by the Debt Recovery Tribunal, by virtue of Deed of Assignment entered into between Defendant Nos.1 and 2 and under an alleged writing dated 22^nd December 2010 from the Receiver purporting to handover possession of larger property on “as is where is” basis.

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(iv). The Learned Counsel submitted that though the Recovery Officer attempted to take possession on 16^th April, 2009 and the Court Receiver on 23^rd September, 2009, as per report submitted by the Court Receiver, he could not take possession of the suit property for want of identification of the suit property and larger property. The Learned Counsel also placed reliance upon the

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affidavit in reply dated 13^th July, 2011 filed by Defendant No.2 bank and more particularly para (4) of the said affidavit in which it was deposed that on 25^th September, 2010 at 11.00 a.m. the Court appointed Receiver visited to mortgage property and took symbolic possession of the mortgage property on ‘as is where is basis’. It was further deposed that he submitted his report to the bank to be filed before the Recovery Officer of the Debt Recovery Tribunal II and since the matter was settled between the bank and Defendant No.1, the report was not filed. The Learned Counsel submitted that the so called report dated 25^th September, 2010 alleged to have been submitted by the Receiver to the Recovery Officer of Debt Recovery Tribunal that after filing his letter dated 15^th September, 2010 on 23^rd September, 2010 before Recovery Office of the Debt Recovery Tribunal, Defendant NO.1 gave him the details of the new survey number i.e. 69/8 to 68/23 by showing the suit survey plan dated 27^th July, 2010 and the property card dated 31^st July, 2010 issued by the City Survey Office itself is concocted and bogus. There was no reference to any such alleged visit

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and possession alleged to have been taken by the Receiver on such date in the Roznama of the Debt Recovery Tribunal. The Learned Counsel submitted that admittedly his so called report recording possession alleged to have been taken by the receiver was not filed with the Debt Recovery Tribunal though the matter came to be disposed of much later. Though matter appeared on the Board of Debt Recovery Tribunal thereafter on 15^th October, 2010 and 18^th November, 2010, neither Bank nor Defendant No.1 who was present on 18^th November, 2010 informed Debt Recovery Tribunal about possession alleged to have been taken by the Receiver. On the contrary on 15^th October, 2010 matter was adjourned to 18^th November, 2010 for Receiver and valuation report.

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(v). In the alternative, it is submitted that the Receiver

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only took symbolic possession of the suit property as is submitted by the receiver himself in his affidavit and therefore the receiver would have given only symbolic possession and question of giving physical possession did not arise. It is submitted that the physical possession was

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all throughout with the Plaintiffs and therefore since Defendant No.1 has put his lock after obtaining so called symbolic possession from the receiver has therefore dispossessed the plaintiffs without due course of law and without consent of the Plaintiffs.

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(vi). The Defendant No.1 claims to be the assignee of the decree passed by this Court and transferred to Debt Recovery Tribunal which did not authorise the Defendants to take forcible possession of the suit property. The assignee at the most steps into the shoes of the bank and ought to have applied for execution of the decree and take steps for possession and admittedly not having done so and having put his own lock upon getting the so called symbolic possession from the bank has thereby dispossessed the Plaintiffs without due course of law. According to the Learned Counsel the decree assigned in favour of the Defendant no.1 was executable and rights of redemption of mortgagee continues till the sale takes place and such rights are not extinguished.

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(vii). The Defendant No.1 himself is claiming the rights in respect of the portion of larger property under the consent decree dated 15^th December, 1988 in Suit No. 3286 of 1988 which was registered. Plaintiff No.2 to 5 admittedly were given the suit property under such decree. The Plaintiffs were in possession of their respective portion out of larger property and the other parties to the suit including Defendant No.1 were in possession of their portion alloted to them under the said consent decree. The Learned Counsel submitted that it is obvious that Defendant No.1 took law in his hands and in collusion with the officer of the bank without giving any notice to the Plaintiffs of the preponement of the proceedings before the Debt Recovery Tribunal and without informing about alleged visit of the Court Receiver on 25^th September, 2011, record were fabricated and created to show the possession of the bank and thereafter handing over thereof to the Defendant No.1.

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On the other hand the Learned Counsel Shri Jain appearing for the bank admitted that the Court Receiver appointed by the Debt Recovery Tribunal took

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only the symbolic possession of the suit property on 25^th September, 2010 when the defendant No.1 was present and assisted the Court Receiver in identifying the larger property including the suit property. The Learned Counsel admitted that it was not the case of the Receiver that he took physical possession of the suit property or larger property and therefore since symbolic possession was taken, the same was given to the Defendant No.1 as “as is where is basis”. It was also admitted that the report dated 25^th September, 2010 prepared by the Court Receiver was not filed with the Debt Recovery Tribunal II.

¶144

The Learned Senior Counsel Shri Mehta appearing for Defendant No.1 vehemently opposed the submission made by the learned Senior Counsel appearing for the Plaintiffs and made the following submissions :-

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(i). Clause 2(a) of the Consent Decree passed by this

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Court on 15^th December, 1988 did not mention about the partition by metes and bounds and did not show possession of the suit property in favour of the Plaintiffs.

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The Plaintiffs failed to prove their physical possession on 9^th March, 2011 or at any point of time.

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(ii). The bank has handed over possession of the larger

¶149

property including the suit property on 22^nd December,

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2010 pursuant to an order dated 9^th December, 2010 passed by Debt Recovery Tribunal on an application filed by the bank and also executed the Deed of Assignment in favour of the Defendant No.1 on 25^th December, 2010 and therefore there is no substance in the submission of the Plaintiffs that Plaintiffs were dispossessed without their consent or otherwise than due course of law. According to the Learned Counsel the suit itself was not maintainable under Section 6 of the Specific Relief Act and no case is made out by the Plaintiff for any relief as sought for. No criminal complaint has been filed by the Plaintiff showing alleged dispossession of the plaintiffs from the suit premises by the Defendant No.1.

¶154

(iii). Without admitting the existence of the leave and licence agreement relied upon by the Plaintiffs in faovur of M/s.Fortune Cars Pvt. Ltd., the same does not identify the C.T.S. numbers of the plot alleged to have been given

¶155

on leave and licence and in any case the suit property. It

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was entered into by Amod Mehra HUF who was not the owner of the suit property.

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(iv). In none of the letters addressed by the Plaintiffs to

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the Defendant No.1 or in the police complaint made by the Plaintiff No.1, it had been alleged that the Plaintiffs were in possession of the suit premises and were dispossessed from the suit premises by the Defendant No.1. Even in the public notice issued by the Plaintiff No.1 in the newspaper on 2^nd March, 2011 and 8^th March, 2011, the Plaintiffs had not alleged dispossession from the suit property and also not disputed the physical possession of the Defendant No.1 in respect of the suit property.

¶162

(v). The bank officer and the court receiver visited the

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suit property on 16^th April, 2009 and prepared the panchanama. On the perusal of the panchanama, it is clear that though it shows the possession of the Plaintiff No. 1, the identification of the plot on which the Plaintiff No.1 was present and was having the office at Mehra Estate is not proved. The Plaintiff himself was not aware as to what was the C.T.S. number of his office premises in Mehra Estate which is admeasuring about 10 acres. In

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the report dated 25^th September, 2010 submitted by the Court Receiver, there was no mention of M/s.Fortune Cars Pvt. Ltd. in any portion of the suit property and therefore the Plaintiffs could not prove any licence having been created in favour of the said M/s.Fortune Cars Pvt. Ltd. and that the said licence was in possession till 31^st January, 2011.

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(vi). The electricity bill at page 144 – 149 relied upon by the Plaintiffs were standing in the name of Plaintiff No.2 were not in respect of plot bearing CTS No. 69/28 i.e. the suit property. The consumption in respect of the electricity even according to such bills relied upon by the Plaintiff was zero at the relevant time.

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I have heard the Learned Counsel and have given my anxious consideration to the rival submissions made. For the purpose of invoking Section 6 of the Specific Relief Act, 1963, the following elements must be present :-

¶170

(a) The Plaintiffs’ alleged to have been dispossessed, his possession must be valid.

¶171

(b) The Plaintiffs must have been dispossessed

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without his consent.

then in due course of law.

¶178

(d) Plaintiffs must file suit to recover possession

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of the specific immoveable property within six months from the date of dispossession.

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(e) If the Plaintiffs have dispossessed without recourse of due process of law, he would be entitled to recover possession, notwithstanding any other title that may be set up in such suit.

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(f) Suit to recover the possession must not be

¶182

against the Government.

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Whether Plaintiffs were in possession of the suit property :

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The Plaintiffs’ claim to be in possession of the suit property under a registered Consent Decree dated 15^th December, 1988 in Suit No. 3286 of 1988 which was a partition suit between the members of the Mehra family. Specific portion of the larger plot was assigned to the members of Mehra family including Plaintiff Nos. 2 to 5 and Defendant No.1. Defendant No.1 is also claiming admittedly a separate portion on the larger property. The Plaintiffs had thereafter executed a Leave and Licence Agreement which was a registered document giving

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portion of the suit property to M/s.Fortune Cars Pvt. Ltd. which licence continued till 31^st January 2011 when the said licencee vacated the portion of the suit premises. Admittedly the electricity meters which were in the name of Usha Prints (India) Pvt. Ltd. were situated at the suit property. The Plaintiffs have produced copies of some of the electricity bills for the relevant period which were admittedly situated and installed at the suit property. It is the case of the Plaintiffs that during the relevant period when the said licencee was in possession in respect of the said portion of the suit property, the electricity was consumed as is demonstrated from the electricity bills produced for the said period. It is the case of the Plaintiffs that Plaintiff No.1 has paid all such electricity bills situated at the suit property address by various cheques. The Plaintiffs also sought to rely upon the bank statement in this regard. Defendant No.1 though is right in his submission that other electricity bills relied upon by the Plaintiffs were not only situated at the suit property address but also the consumption reflected therein was showing zero. The Learned Counsel Shri Samdhani fairly admitted that reliance placed on all other bills except the bills in the name of Usha Prints (India) Pvt. Ltd. was misplaced and made it clear that the Plaintiffs were relying upon bills only in the name of Usha Prints (India) Pvt. Ltd. which were admittedly installed in the portion of the suit property which were given on leave and licence to M/s.Fortune Cars Pvt. Ltd. Even when the Recovery Inspector of the bank visited the suit premises on 16^th April, 2009, he found the Plaintiff No. 1 present

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at the address of the Mehra Estate. It is not the case of the Defendant No.1 that the Plaintiff No.1 was in possession of the premises allotted to the Defendants. It is, therefore, obvious that the Plaintiff No.1 would have been present on the portion allotted to the Plaintiffs under the Consent Decree dated 15^th December, 1988. It is also not the case of the Defendant No.1 that he was in possession of the suit property prior to he having been handed over the possession by the Court Receiver. It is also not the case of the Defendant No.1 that he was in joint possession of the suit property prior to the date of the dispossession. In my opinion, the documents produced by the Plaintiffs prima facie proves that the Plaintiffs were in possession of the suit property prior to the dispossession. In my opinion, the possession for the purpose of satisfying the criteria under Section 6 of the Specific Relief Act need not be round the clock. A property must be under the control of the Plaintiff and his possession must be valid on the date of the dispossession. Possession is not necessarily the same thing as occupation or actual user. In case of Emperor vs. Lallu Waghji¹ , this court has held that physical contact is not necessary to complete physical possession, and possession depends upon the physical possibility of the possessor dealing with the things exclusively. In my view, prima facie the Plaintiffs have satisfied that the Plaintiffs were in possession on the date before the date of dispossession and their possession was valid.

1ILR 43 Bom.550

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Whether Consent of the Plaintiffs was obtained :

¶198

It is not the case of the Defendants that the Plaintiffs had given consent for being dispossessed from the suit property. It is also not the case of the Plaintiffs that the consent was given by the Plaintiffs or was being obtained by the Defendants before being dispossessed from the suit property.

¶199

Whether suit has been filed within six month from the date of dispossession ?

¶200

According to the Plaintiffs, the Plaintiffs have been dispossessed on 3^rd March, 2011. It is the case of the Defendants that Defendant No.1 was put in possession by the Court Receiver pursuant to the Order dated 9^th December, 2010 passed by the Debt Recovery Tribunal and was put in possession on 22^nd December, 2010. Even if the date of possession in favour of the Defendant No.1 is considered as 20^th December, 2010, the present suit has been filed on 30^th April, 2011 under Section 6 of the Specific Relief Act and therefore I am of the opinion that the suit was filed within six months from the date of dispossession.

¶201

Whether dispossession of the Plaintiffs from the suit property was otherwise in due course of law and if so, whether the Plaintiffs are entitled to recover possession notwithstanding any other title set up by the Defendants in such suit ?

¶202

It is the case of the Defendants admittedly that in addition to Defendant No.

¶203

1, various members of Mehra family including Plaintiff No.1 and father of the

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Plaintiff No.1 and Defendant No.1 were parties to the proceedings before the Debt Recovery Tribunal. It is the case of the Defendant No.1 that on 7^th December, 2010 Defendant No.1 through his advocate applied for preponement of the proceedings before the Debt Recovery Tribunal from 13^th December, 2010 to 9^th December, 2010 on the ground that the matter was having been settled between the bank and Defendant No.1. On 9^th December, 2010, the Defendant No.2 bank filed an application before the Tribunal for the lifting of attachment, discharging the Court Receiver, handing over the possession of the larger property including suit property and original title deeds to Defendant No.1. Admittedly no notice of making any such request for preponement of the proceedings before Debt Recovery Tribunal, from 13^th December, 2010 to 9^th December, 2010 or copy of the application made by the bank on 9^th December, 2010 was served upon the Plaintiffs. The Plaintiffs therefore could not remain present on 9^th December, 2010 when the Debt Recovery Tribunal allowed the application filed by Defendant No.2 in presence of Defendant No.1. Even in the said application filed by Defendant No.2 bank, it was made clear that Defendant No.2 seeks to handover the possession of the larger property to Defendant No.1 on ‘as is where is basis’ .

¶208

Even in the affidavit dated 13^th July, 2011 filed by the Defendant No.2 bank in para (4), it is deposed that the Court Receiver visited on 25^th September, 2010 at 11.00 a.m. and taken symbolic possession of the mortgage property on ‘as is

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where is basis’. In para (5) it is deposed that the possession of the mortgage property was handed over to the Defendant No.1 by letter dated 22^nd December, 2010 on ‘as is where is basis’. Defendant No.1 also in para (14) of his affidavit has deposed that he was put in possession of the family property by the Court Receiver by his letter dated 22^nd December, 2010. It is further deposed that he subsequently have put his locks on all sheds standing on the said immoveable property. It is not stated by the Defendant No.1 as to when he has put his locks on the suit property.

¶213

The Learned Counsel Shri Samdhani appearing for the Plaintiffs submitted that Defendants were all throughout were in possession in respect of the suit property and were dispossessed on 9^th March, 2011. The Plaintiffs have also lodged a complaint with the local police station and have also filed an application under Section 145(1) of the Criminal Procedure Code in the Court of Metropolitan Magistrate. The Learned Counsel submitted that without admitting the allegations of the bank that possession was given by the Court Receiver to the Defendant NO.1 on ‘as is where is basis’ and/or even symbolic possession was given and even if such statement is accepted, it would not amount to handing over physical possession of the suit property by the Court Receiver to the Defendant No.1. In my opinion, symbolic possession does not amount to physical possession. It was not even the case of the bank that the physical possession was obtained by the Court Receiver. It is the case of the Defendant No.1 himself that

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he was handed over possession by the Court Receiver by letter dated 22^nd October, 2010 and he had put his lock subsequently. Even from the bare perusal of the said letter dated 22^nd October, 2010, it is clear that nobody else has witnessed the

¶218

said alleged handing over of the possession by the Court Receiver to the Defendant No.1. Even if the said document is accepted and considered, at the most, it would amount to handing over symbolic possession and not physical possession. It is, therefore, obvious that the Defendant NO.1 has subsequently put up his lock in the suit property and has thereby dispossessed the Plaintiffs from the suit property otherwise then in due course of law. I am not inclined to accept the submission of the Learned Counsel for the Defendant that Defendant No.1 was put in physical possession by the Court Receiver by virtue of making compliance of the Order dated 9^th December, 2011 passed by the Debt Recovery Tribunal. In my opinion, even otherwise from the conduct of the Defendant No.1 and the Court Receiver appointed by the bank by preponing the date of the proceedings before the Debt Recovery Tribunal, by giving no notice or effecting service of the application upon the Plaintiffs, no notice having given to the Plaintiffs before the alleged visit of the Court Receiver, on 25^th September, 2010, it is clear that the Court Receiver apparently colluded with the Defendant No.1 and has assisted the Defendant No.1 in dispossessing the Plaintiffs otherwise in due course of law.

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The Learned counsel appearing for the Defendants placed reliance upon the Judgment of the Apex Court in the case of Sudhir Jaggi & Anr. vs. Sunil Akash Sinha Choudhary & Ors.² and more particularly on para (12) in which the Apex Court approved the ratio in case of Raj Krishna Parui vs. Muktaram Das³ which reads thus :-

¶223

"In a suit commenced under section 9 of the Specific Relief Act, the sole point for determination will be, whether the plaintiffs were in possession of the disputed property within six months previous to the institution of the suit and whether they had been deprived of such possession by the defendant otherwise than in due course of law. It is immaterial, if the plaintiffs were in possession, that such possession was without title. What the plaintiff has to prove is possession of the disputed property and not mere isolated acts of trespass over that property.

¶224

In order to entitle the plaintiff to succeed on the ground of possession, he must prove, firstly, that he exercised acts which amounted to acts of dominion; the nature of these acts of dominion varies with the nature of the property; secondly, that the act of dominion was exclusive. If the occupation by the plaintiff, as indicated by those acts, has been peaceable and uninterrupted and has extended over a sufficient length of time, the inference may properly be drawn that the plaintiff was in possession."

¶225

Even from the perusal of the Judgment delivered by the Calcutta High

¶226

Court and approved by the Apex Court (supra) it is clear that if the occupation by

¶227

2 (2004) 7 Supreme Court Cases 515

¶228

3 (1910) 12 Cal LJ 605

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the Plaintiffs had been peaceful and uninterrupted and has extended over a sufficient length of time, the inference may properly be drawn that the Plaintiff was in possession. It is not even the case of the Defendant No.1 that he was already in possession of the suit property prior to the date of alleged dispossession. His case is that he was put in possession on the basis of the order passed by the Debt Recovery Tribunal on 9^th December, 2010 and not prior thereto. In my opinion for the purposes of finding out whether the Plaintiffs were in possession on the date of the alleged dispossession, it is not required to be prove that he was in actual use, occupation and possession round the clock in respect of the property alleged to have been dispossessed. The Plaintiffs having been proved that they were alloted the suit property under consent decree and the Defendants also having claims separate property under the same consent terms, in my opinion, the Plaintiffs have reasonably proved that the Plaintiffs were in possession of the suit property before dispossession.

¶233

The Learned Counsel Shri Samdhani appearing for the Plaintiffs relied upon

¶234

the Judgment in case of Anoopchand Revashankar Metha vs. Amerchand⁴ Paragraphs 3, 4 and 5 of the said Judgment reads thus :-

¶235

The plea of the deft, is that the pltf. cannot be consd. to have been a tenant in occupation of the premises at the time when the delivery was given to him, as a notice to quit had been served upon

¶236

4 AIR 38 (1951) Mysore 101

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him terminating the tenancy by 1-1-1949, & he, having obtained possession of the premises in a lawful manner from an officer of the Ct. cannot be held to have dispossessed the pltf. otherwise than in due course of law & that the suit as at present brought is, therefore, not maintainable.

¶241

The circumstances in which the deft. got possession of the suit house are not disputed. Admittedly, the pltf. was not present at the spot as the house was found locked. No consent, implied or express, of the pltf. in respect of the delivery of possession could, therefore, be inferred. The authority to the Amin was merely to attach the movables & if he has delivered possession of the house, he has done so in excess of his authority & the deft. getting possession of the house in that way cannot be deemed to have obtained possession in due course of law.

¶242

The object of Section 9, Specific Relief Act, is to protect peaceful possession against the illegal dispossession by persons who take the law into their hands. The possession of the property obtained through the medium of an officer of the Ct. not authorised to act in that direction will not be less a dispossession caused without consent of the person in control of the property than in due course of law contemplated under the Specific Relief Act. I am, therefore, of opinion that the trial Ct. has rightly found that the suit is maintainable & the pltf. is entitled to relief claimed.

¶243

Relying upon the said Judgement delivered by the Mysore High Court

¶244

(supra) the Learned Counsel for the Plaintiffs submitted that under an order dated 9^th December, 2010, the Court Receiver was not authorised to handover

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physical possession of the suit property to the Defendant No.1. The Learned Counsel submitted that if the Court Receiver himself was not in physical possession of the suit property, he could not and have not handed over the physical possession of the suit property to Defendant No.1 and therefore it is obvious that the Defendant No.1 having put his lock subsequently has dispossessed the Plaintiffs from the physical possession of the suit property otherwise in due course of law. In my opinion, the Learned Counsel appearing for the Plaintiffs have rightly placed reliance on the Judgment of the Mysore High Court (Supra) in so far as the issue raised by the Defendants that in none of the correspondence or record between the Plaintiffs and the Defendants as well as in the police complaint filed by the Plaintiff No.1, and the public notice issued by the Plaintiffs, the Plaintiffs had alleged to have been in possession and alleged to have been dispossessed by Defendant NO.1. The Learned Counsel Shri Samdhani submitted that when first few letters were written, the Plaintiffs were not dispossessed by the Defendant No.1. He also submitted that at that stage, assistance of advocate was not availed of. The Learned Counsel submitted that however, in the application filed under Section 145(1) of the Criminal Procedure Code as well as in the public notice issued by the Plaintiffs, the grievance was made by the Plaintiffs about the dispossession of the Plaintiffs from the suit premises by the Defendant No.1. It is true that the first few letters, Plaintiffs did not allege about their dispossession and/or about their peaceful possession of the

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suit property. However, it is clear that in the subsequent correspondence as well as in the application filed before the Learned Magistrate under Section 145(1) of the Criminal Procedure Code, Plaintiffs have made such statement about their prior possession and about their dispossession by the Defendant No.1. I, therefore, don’t find substance in this submission made by the Defendants.

¶253

In so far as submission of the Learned Counsel for the Defendants that the leave and licence agreement relied upon by the Plaintiffs was executed in the name of Amod Nandkishore Mehra HUF and since HUF was not the owner of the suit property, no reliance on such agreement could be placed by the Plaintiffs is concerned, the Learned Counsel Shri Samdani invited my attention to the affidavit-in-rejoinder and more particularly para (26) of the rejoinder dated 2^nd August, 2011 stating that the Plaintiff No.1 was acting in his capacity as Karta of Amod Mehra HUF and there was common practice that the benefits of properties/assets standing in the name of individuals/family members were treated as those of HUF’s of such family members. In my opinion, there is no substance in this submission made by the Defendants that no reliance could be placed on such leave and licence agreement entered into by HUF of Amod Nandkishore Mehra.

¶254

In my opinion even if any title was conferred upon the Defendant NO.1, by an Order dated 9^th December, 2010 passed by the Debt Recovery Tribunal or by

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virtue of deed of Assignment entered into between the bank and the Defendant No.1 in respect of the larger property including the suit property, it could be only said that the decree in respect of the mortgage property was assigned in favour of Defendant No.1 and Defendant NO.1 was not put in physical possession of the suit property under such order dated 9^th December, 2010 and under the Deed of Assignment. In my opinion, prima facie Defendant No.1 ought to have taken steps to execute the said decree for taking possession of the suit property in accordance with law. The Defendant No.1 however without following due course of law by executing the decree, has put his lock unlawfully and has dispossessed the Plaintiffs from the suit property. It is made clear that I have not expressed any opinion on the correctness of the order passed by the Debt Recovery Tribunal on 9^th December, 2010 allowing raising of attachment and allowing the bank to handover the possession of the suit property to Defendant No.1. In my opinion, the Plaintiffs have made out prima facie case for protecting the suit property. However I am not inclined to accept that the Plaintiffs be appointed as an agent of the Court Receiver without any royalty and security.

¶259

I, therefore, pass the following order :-

¶260

(a) The Court Receiver, High Court, Bombay is

¶261

appointed as the Receiver in respect of the suit

¶262

property described in Schedule at Ex.`A’ to the

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plaint.

(b) The Court Receiver is directed to invite bid from the Plaintiff and Defendant No.1 for the purpose of appointing an agent of the Court Receiver in respect of the suit property and shall appoint the party who submits the highest offer for payment of royalty for becoming an agent of the Court Receiver and on usual terms and conditions including the security and royalty.

¶268

(c) Till the Court Receiver takes the possession of the suit property, there shall be injunction in terms of prayer (b) of the Notice of Motion. (d) Notice of Motion is accordingly made absolute in the aforesaid terms.

¶269

(e) There shall be no order as to costs.

Amod N. Mehta and 4 Ors. v. Ashok N. Mehra and Anr.

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Amod N. Mehta and 4 Ors. v. Ashok N. Mehra and Anr.

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