Dismissed

Veekay Lal Invesstment Co.Pvt.Ltd.and Anr. v. Holiness Shrimant Sudhindra Tirth Swamji of Sanmasthan Kashiram and Ors.

Bombay HC6 May 2014S/268/1988

Case brief

AI extract

What is this about?

The single judge dismissed a suit filed by Veekay Lal Investment Co. Pvt. Ltd. as an abuse of court process, holding it was filed based on a fraudulent and invalid Power of Attorney executed by a former Court Receiver, rendering the suit non-maintainable without the proper party joining.

What did the court decide?

Suit dismissed with costs; 2nd plaintiff directed to be deleted; Vigilance Department directed to investigate and impound original Power of Attorney.

Veekay Lal Invesstment Co.Pvt.Ltd.and Anr. Vs… — Civil Procedure and Limitation | Bombay HC (2014)

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909-S-2681988.DOC

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Ars

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 268 OF 1988

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Veekay Lal Investment Co. Pvt. Ltd. & Anr.…Plaintiffs
Versus
Holiness Shrimant Sudhindra Tirth Swamiji of …Defendants
Sanmasthan Kashiram and others

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Mr.Shrikant Bagade, i/b Mr. Sanjeev Mishra, for the Plaintiffs.
Mr.P.G.Tangsali, i/b Amit Gharte, for the Defendant No.1.
Mr. Saikumar Ramamurthy,for Defendant No.

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Mr. Nitin Thakkar, Senior Advocate,a/w M.S. D’mello, for
Defendants No.2 to 5(g)

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Mr.S.S. Deshpande, Court Receiver, High Court, Bombay a/w
Mr. Ketan Trivedi, 1st Asstt. to Court Receiver present.

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CORAM:G.S. PATEL, J
DATED:6th May 2014

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PC:-

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Issues were framed in the Court yesterday. At that time, I noted that the advocate for the plaintiffs claimed to have instructions to appear only for the 1st plaintiff. Since the advocate for the 1st plaintiff sought time in open Court to “take instructions” as to his engagement by the 2nd plaintiff, the matter was stood over to today.

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909-S-2681988.DOC

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The 2nd plaintiff is none other than the erstwhile Court Receiver, Mr. D.B. Khade. He is joined as party plaintiff in his capacity as Court Receiver at the time when the suit was filed in 1988. Today, learned advocate for the 1st plaintiff, produces a photocopy of the Power of Attorney executed on 24th August 1978, i.e., about 10 years before the present suit was filed. This Power of Attorney purportedly relates to the suit property. It is executed on a stamp paper purchased by the 1st plaintiff. It was allegedly prepared by one M.B. Tawde an advocate with his chambers at 1/9, Palav Sada, 101, Jerbai Wadia Road, Parel, Mumbai, and not by the Court Receiver himself or by any person on the Receiver’s panel.

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In this Power of Attorney, the Court Receiver has delegated wide, sweeping and decidedly ambitious powers to the 1st plaintiff, a private limited company, including the rights to manage all these properties, to collect and recover rents and profits, to recover monies withdrawn from the tahasildar, and to submit plans for construction. More: the purportedly delegated powers include the right to institute legal proceedings in any court, civil, criminal, tenancy and revenue, and to represent the Court Receiver in all these forums; and even the right to accept service of writs, notice, summons etc (clause 9).

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This is inconceivable. It is also incomprehensible how the 1st plaintiff could use this Power of Attorney to file the present suit nearly a decade after the Power of Attorney was executed. The Power of Attorney is specifically in relation to earlier Suit No. 3415 of 1947. It could not, of course, have referenced the present case at the time when it was executed. Recital 5 of the Power of Attorney seems to indicate that pursuant to an order of the High Court, the properties in receivership were allegedly sold to 1st plaintiff but that a deed of conveyance remained to be executed. Indeed, this is only justification for that Power of Attorney. Had that been the case that the Power of

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909-S-2681988.DOC

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Attorney would have been limited to the question of execution of
deed of conveyance then in draft, and gone no further. I am also
unable to understand how this Power of Attorney can be claimed to
be valid today several years after the person who was the Court
Receiver at the time of the power of attorney’s execution has since
demitted office. Mr. D.B. Khade is not the Court Receiver today. He
has not been the Court Receiver for very long time. Upon his
retirement or demitting office, had this power of attorney been
genuine, a fresh power of attorney ought to have been obtained from
his successor in office. No such attempt has been made. There is no
such renewed power of attorney. The reasons suggest themselves.

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The Vakalatnama in the suit is signed only by a representative of the 1st plaintiff. He has signed too on behalf of the 2nd plaintiff as his Constituted Attorney in Suit No. 3415 of 1947.

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Prima facie, the 1st plaintiff has played a fraud on the Court. The Power of Attorney is prima-facie dubious and possibly entirely illegal. Certainly it has no validity today, as Mr. Khade is not the Court Receiver and no fresh power of attorney has been obtained from any of Mr. Khade’s successors in office. Very likely it also had no validity at the time when the suit was filed, even if Mr. Khade was then the Court Receiver, simply because the power of attorney is limited to the 1947 suit, and the Court Receiver could never have given any private party any such wide and omnibus powers.

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This suit is the grossest possible abuse of the process of this Court. Without the 2nd plaintiff being properly joined under a validly given authority, the 1st plaintiff has no title to the suit properties. Paragraph 4 of the plaint makes it clear that on the 1st plaintiffs’ own showing without a conveyance executed between the

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909-S-2681988.DOC

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1st plaintiff and the Court Receiver, the 1st plaintiff derived no title
whatever.

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The plaint seeks cancellation of various documents of transfer of title to parts of the suit properties in favour of the other defendants; possession; and mense profits. In the absence of a conveyance, and without the 2nd plaintiff being properly joined, the 1st plaintiff could not have instituted this suit. This is the reason for this utterly bogus and fradulent alleged power of attorney being used in this fashion. The entire cause of action in the suit hinges on the validity and legality of this power of attorney. On the face of it, that power of attorney is not merely suspicious and dubious. Prima-facie it is a wholly illegal and fraudulent document.

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When all this was noticed, I directed learned counsel appearing on behalf of the 1st plaintiff to produce the original Power of Attorney. I was requested to keep the matter back for this purpose and to allow the advocate’s senior to come to Court. After waiting for 45 minutes, I have neither the privilege of that original document nor the senior in question. I do not find this surprising in the least, given the circumstances. The learned counsel for the 1st plaintiff now seeks that the matter be adjourned to a future date. For what purpose, I am unable to understand. There is absolutely no manner of doubt in my mind that plaintiff no.1 has attempted to overreach this Court. This entire suit is an abuse of the process of Court. It is founded on a document that is entirely unreliable, and very possibly bogus, fraudulent and illicit. The circumstances in which that power of attorney was made must be investigated forthwith without delay.

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Mr. Deshpande, the present Court Receiver, and Mr. Trivedi, 1st Assistant to the Court Receiver are both present in Court. Both confirm that no Court Receiver holding office after Mr. Khade has, at

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any time, given a Power of Attorney of any kind to the 1st plaintiff.
There are no records with the office of Court Receiver between the
time of Mr. Khade’s tenure and the tenure of the present Court
Receiver showing that any such Power of Attorney was given to the
1st plaintiff.

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In a situation like this, it cannot be that a court is powerless to act. The very foundation of the process of this court is threatened by an action like this. The Court must act to correct the imbalance and to render justice. In exercise of powers under Order I Rule 10 of the Code of Civil Procedure, 1908, the 2nd plaintiff is directed to be deleted as a party to the suit. The registry is directed to carry out this amendment forthwith. I have no hesitation in concluding that suit on the face of it not only maintainable but is an attempt to defraud the Court and to overreach it. Without the 2nd plaintiff, the suit is not maintainable. For nearly three decades since the suit was filed in 1988, the 1st plaintiff has attempted to deceive and mislead the Court. Third party rights, already created on the suit properties, are sought to be thrown into jeopardy on the basis of a thoroughly unreliable authority. The suit cannot be permitted to continue; to allow it to do so would be a travesty of justice. The suit meets its nemesis today. The suit is dismissed with costs payable to each set of defendants. Costs to be paid within two weeks from today.

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Notwithstanding the dismissal of this suit, the Vigilance Department of the High Court is directed to investigate the manner and the circumstances in which this Power of Attorney dated 24th August 1978 was purported to be executed. The photocopy tendered is taken on file and is placed in the safe custody of the Court Receiver. The Court Receiver as also the head of the Vigilance Department shall forthwith take steps to have the original Power of Attorney produced and impounded, and kept under seal. The

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Vigilance Department may also file proceedings including criminal
proceedings against the 1st plaintiff’s directors and, if found fit, and
after giving notice, against Mr. D. B. Khade. If it is found that the
Power of Attorney is a forgery or is otherwise not a genuine
document, the necessary FIR and criminal complaint shall be filed
with the police station concerned.

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Vigilance Department to file an action taken report in the month of June. All concerned to act on an authenticated copy of this order.

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Copies of this order to be supplied to the Registrar General and Prothonotary, with a request to immediately place the same before the Hon’ble the Chief Justice for information and further administrative action.

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(G. S. PATEL, J.)

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Veekay Lal Invesstment Co.Pvt.Ltd.and Anr. v. Holiness Shrimant Sudhindra Tirth Swamji of Sanmasthan Kashiram and Ors.

Case brief

What is this about?

What did the court decide?

Veekay Lal Invesstment Co.Pvt.Ltd.and Anr. v. Holiness Shrimant Sudhindra Tirth Swamji of Sanmasthan Kashiram and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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