Allowed

S.D.Choksi. v. T.v.Patel Pvt.Ltd.,and 3 Ors.

Bombay HC16 Aug 2013NMS/778/2013

Case brief

AI extract

What is this about?

Court permitted the plaintiff in Suit No.171 of 1982 to act as an agent of the Court Receiver to defend against an ex-parte decree in a related T.E. & R. Suit where the Receiver was impleaded as defendant No.2 but failed to file Vakalatnama or Written Statement for ten years.

What did the court decide?

Notice of Motion made absolute by appointing the plaintiff of the suit as an agent of the Court Receiver to take all steps to defend the ex-parte decree and file appropriate proceedings.

S.D.Choksi. Vs T.v.Patel Pvt.Ltd.,and 3 Ors. — Execution and Attachment | Bombay HC (2013)

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NMS 778-2013.odt

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Anand

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

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NOTICE OF MOTION NO.778 OF 2013

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IN

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 SUIT NO.171 OF 1982

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Modi Rubber Limited .Applicant

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In the matter between

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Satishkumar Dahyalal Choksi.Plaintiff

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 V/s.

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Tulsidas V. Patel Pvt. Ltd. & ors.Defendants

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Mr.Venktesh Dhond, Senior Counsel i/b. M/s.Dhru
& Co., for the Applicant

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Mr.K.K.Trivedi, 1st Assistant to the Court
Receiver for the Defendant No.4 present

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Mr.Gauraj Shah i/b. M/s.Gajria & Co., Advocate,
for the Defendant No.3

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Mr.Neveille Mukherjee i/b. M/s.Wadia Ghandy &
Co., Advocate for the Plaintiff

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CORAM:R.D.DHANUKA, J.

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DATE:16TH AUGUST, 2013

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P.C.

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.This Notice of Motion has been filed

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by the applicant/ original defendant No.4

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inter alia praying for an order and direction

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against defendant No.5 and the Court Receiver

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to take all necessary steps to protect the suit

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premises and also to take all necessary steps,

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Page 1 of 10

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NMS 778-2013.odt

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including filing of necessary applications,
affidavits, memo of appeal etc. as may be
necessary to vacate and/or set aside an ex-
parte order dated 25th March, 2013 passed by
the Small Causes Court in T.E. & R. Suit

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No.42/49 of 2003 or in the alternative to
permit the applicant/original defendant No.4
to act as an agent of the Court Receiver to

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take all necessary steps including filing of
necessary applications, affidavits, memo of
appeal etc. as may be necessary to vacate
and/or set aside an ex-parte order dated 25th
March, 2013 passed by the Small Causes Court

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in T.E. & R. Suit No.42/49 of 2003 titled
Girish Maneklal Damania & ors vs. Shri
Parmanand Tulsidas Patel which has not been
taken.

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2.The plaintiff, applicant/original

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defendant No.4 and Bhattad Commercial

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Corporation are claiming rights through a
third party Agreement entered into between
M/s. Tulsidas V. Patel Pvt. Ltd. and Parmanand

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Page 2 of 10

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NMS 778-2013.odt

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Tulsidas Patel, who were granted a plot of land
on lease by the owners of Girish M. Damania &
others. It is the case of the applicant that
the said lessee carried out various
constructions on the said lands and sold all
those structures to the applicant, Girish M.
Damania and Bhattad Commercial Corporation.
The plaintiff filed a suit for specific
performance of contract in this Court being
Suit No.171 of 1982 and by an Order dated 25th
October, 1982, this Court appointed Court
Receiver in respect of the plot and
structures. It is the case of the applicant
that pursuant to the said order passed by this
Court, occupants of the said construction have

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been paying rent directly to the Court
Receiver.

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3.In 2003, the owners of the plot filed
T.E. & R. Suit No.42/49 of 2003 in the Court
of Small Causes, Mumbai against Parmanand
Tulsidas Patel. In view of this, the Court
appointed Court Receiver in respect of the

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Page 3 of 10

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NMS 778-2013.odt

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said property. The Court Receiver of this
Court also came to be impleaded as defendant
No.2 in the said suit. Parmanand Patel
applied and administrator has been appointed.
It is the case of the applicant that though
rent has been deposited with the office of the
Court Receiver in respect of the various
constructions, the office of the Court

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Receiver has not deposited the rent with the
Solicitors. On perusal of record, it appears
that applicant/original defendant No.4, who
has filed this Notice of Motion, has applied
for impleadment in the said suit in the Small
Causes Court, Mumbai and the said application
came to be rejected. Revision Application as
well as Writ Petition filed by the applicant
herein also came to be rejected.

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4.Mr.Dhond, the learned Senior Counsel
appearing on behalf of the applicant submits
that since the Court Receiver was impleaded as
party defendant No.2 in the said suit, it was
the duty of the Court Receiver to protect the

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Page 4 of 10

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NMS 778-2013.odt

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property in respect of which the Court

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Receiver came to be appointed by this Court in
Suit No.171 of 1982. My attention is invited
to the ex-parte order passed by the Court of
Small Causes, Mumbai on 25th March, 2013. By
the said Order and Decree, the suit filed by
Girish M. Damania and others, owners of the
plot has been decreed. The defendants were
directed to pay Rs.41,040/- towards arrears of
rent from 13th October, 1999 to 14th October,
2002. The grievance of the applicant,
plaintiff and other defendants is that though

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the Court Receiver was impleaded as party
defendant No.2 to the said suit, neither any
Vakalatnama nor any Written Statement is filed
in the said Suit. My attention has been
invited to the Judgment rendered by the Court
of Small Causes, Mumbai which indicates that
the suit has been decreed on the ground of

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arrears of rent. Since no Appeal has been
filed by the defendants against the said Order
and Decree, the plaintiffs in this suit have
applied for execution of the decree. Mr.

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Page 5 of 10

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NMS 778-2013.odt

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Dhond, the learned Senior Counsel submits that

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though these facts are brought to the notice
of the Court Receiver, no steps are taken to
file appeal. In these circumstances, it is
submitted that the applicant, plaintiff and
other occupiers of various structures on the
said plot who have interest in the property
their interest is seriously prejudiced. It is

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submitted that since no steps are taken by the
office of the Court Receiver, the applicant be
directed to engage an Advocate to challenge the
Order passed by the Court of Small Causes,
Mumbai. It is submitted that in the

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alternative, plaintiff in Suit No.171 of 1982
be appointed as an agent of the Court Receiver
for the purpose of defending the execution
proceedings and for filing proceedings in
respect of the subject matter of the said
proceedings and challenge the original decree
passed by the Court of Small Causes, Mumbai.

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5.Mr.K.K.Trivedi, First Assistant to the

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Court Receiver, on the other hand, submits

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Page 6 of 10

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NMS 778-2013.odt

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that though the Court Receiver was joined as

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party defendant No.2 to the said proceedings
in the Court of Small Causes, Mumbai, the
office of the Court Receiver did not get any
assistance from the first defendant i.e.
Parmanand Tulsidas Patel or his administrator.
It is submitted that rent recovered by the
office of the Court Receiver was forwarded to

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the Solicitors of the landlord, who after
some-time refused to accept the rent and in
these circumstances, the rent could not be
deposited.

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6.The learned counsel appearing for the

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plaintiff invited my attention to the fact that
though Court Receiver was appointed as party
defendant No.2 to the said suit in the year
2003, even Vakalatnama has not been filed by
the Court Receiver in that suit.

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7.In my view, if the earlier Solicitors

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for the landlords have refused to accept any
rent, the Court Receiver could have deposited

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Page 7 of 10

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NMS 778-2013.odt

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the rent directly in the suit account in the

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said proceedings before the Court of Small
Causes, Mumbai after obtaining leave of that
Court or ought to have taken an appropriate
direction from this Court. Neither

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Vakalatnama nor Written Statement has been
filed by the Court Receiver for the last ten
years in the said proceedings. On the perusal
of the decree passed by the Court of Small
Causes Court, Mumbai, it is revealed that the
decree has been passed basically on the ground
of arrears of rent and for want of Written

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Statement. In my view, parties to this Suit
or for whose benefit the Court Receiver came
to be appointed by this Court are entitled to

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be protected by the Court Receiver by

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representing before the Court of Small Causes,
Mumbai in the said Suit filed by the
plaintiff.

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8.In these circumstances, relief sought
by the applicant which is also supported by
the plaintiff in this Suit for appointment of

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Page 8 of 10

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NMS 778-2013.odt

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the plaintiff as an agent of the Court

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Receiver for the purpose of taking all
possible steps for defending the execution of
decree including filing of an Appeal or any
other proceedings by engaging an Advocate
independently deserves to be granted. Notice
of Motion is accordingly made absolute by
permitting the plaintiff in this Suit to act
as an agent of the Court Receiver and to take
all steps in terms of the prayers of the Notice
of Motion. The learned counsel appearing for
the plaintiff, defendant Nos.3 & 4 agree to
bear all costs/charges and expenses for
defending decree passed by the Court of Small
Causes, Mumbai, for filing appropriate
proceedings and for taking all necessary steps

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to protect the suit premises equally. The
Court Receiver is directed to remain present
before the Court of Small Causes, Court Room
No.19 on 20th August, 2013 and convey the order

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passed by this Court to the Court of Small

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Causes, Mumbai to the effect that the plaintiff
in this Suit has been appointed as an agent

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Page 9 of 10

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NMS 778-2013.odt

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for the purpose of defending the said Suit and

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to take all necessary steps and for filing
appropriate proceedings. The plaintiff,
defendant Nos.3 & 4 may also remain present
personally or through their Advocates. No
order as to costs.

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Parties as well as Court Receiver to

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act upon a copy of this order authenticated by
the associate of this Court.

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Page 10 of 10

S.D.Choksi. v. T.v.Patel Pvt.Ltd.,and 3 Ors.

Case brief

What is this about?

What did the court decide?

S.D.Choksi. v. T.v.Patel Pvt.Ltd.,and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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