Allowed

Bijendra Singh Kailash Singh v. M/S. Tainwala Builders and Developers.

Bombay HC29 Apr 2016APP/634/2012

Case brief

AI extract

What is this about?

Allowed the appellant's challenge to the Single Judge's order dismissing a Chamber Summon seeking appointment of a Court Receiver. Directed the Court Receiver to hand over possession of suit land to the appellant based on a final earlier order, while keeping boundary disputes open. Ordered refund of deposited sum to original plaintiffs.

What did the court decide?

Impugned order setting aside sum No.1664 of 2011 is quashed; Court Receiver directed to hand over possession to appellant within one month; deposited sum refunded to Respondent No.2; pending N.M. disp

Bijendra Singh Kailash Singh Vs M/S. Tainwala… — Execution and Attachment | Bombay HC (2016)

osapp634

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
 APPEAL NO.634 OF 2012 IN
 CHAMBER SUMMONS NO.1664 OF 2011 IN
 EXECUTION APPLICATION ST.NO.1432 OF 2011 IN
 NOTICE OF MOTION NO.2009 OF 2010 IN
 SUIT NO.4110 OF 1995

¶5

Bijendra Singh Kailash Singh ...Appellant
vs.
M/s.Tainwala Builders and
Developers & Ors. ...Respondents

¶6

Mr.Rajiv Narula i/b Mr.V.S.Bhorge for the appellant
Mr.M.M.Vashi, Senior Counsel a/w Mr.Makrand Kale i/b
M/s.M.P.Vashi & Associates for the respondent Nos.1
and 2

¶7

Ms Pooja Kshirsagar a/w Mr.Anand Chovati i/b Yogesh
Adhia for respondent Nos.3 and 4

¶8

Ms Sushma Bhaidkar, II Assistant Court Receiver is
present

¶9

CORAM : A.S.OKA, &
 P.D.NAIK,JJ.
 DATE : APRIL 29, 2016

¶10

P.C.:

¶11

1Heard the learned counsel for the appellant,
the learned senior counsel for the respondent Nos.1
and 2 and the learned counsel for the respondent
Nos.3 and 4. Notice for final disposal has been
already issued.

¶12

2By this appeal, the appellant who is the
original defendant in the Suit No.4110 of 1995 has
challenged the order dated 20th June 2012 passed by
the learned Single Judge on Chamber Summons No.481

¶13

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of 2012 and the Chamber Summons no.1664 of 2011.
There is no dispute that though the Chamber Summon
Nos.481 of 2012 and 1664 of 2012 were disposed of by
the impugned order, due to inadvertent error, the
Chamber Summons No.464 of 2012 is mentioned in the
title of the impugned order instead of 1664 of 2012.

¶15

3The Notice of Motion No.2009 of 2010 was taken
out by the present appellant in the Suit No.4110 of
1995 praying for declaration that the Agreement for
Sale dated 26th September 1994 on the basis of which
the suit was filed and the consent terms were filed
on 17th April 1998 stand rescinded altogether. By
Judgment and Order dated 7th March 2011, the learned
Single Judge made the said Notice of Motion
absolute. The paragraphs 8,9 and 10 of the said
order read thus:

¶16

“8Since the Defendant has admittedly
received an amount of Rs.18,00,000/- from the
Plaintiffs and in view of the fact that the
contract has now been rescinded by the
instant order, the defendant is directed to
deposit the said amount of Rs.18,00,000/- in
this Court within a period of eight weeks
from date. Benefit of this order will enure
to the defendant only after he deposits the
said amount of Rs.18,00,000/- in this Court
with the stipulated period. The defendant on
such deposit may call upon the plaintiffs to
hand over the possession of the suit
property. The plaintiffs would also be

¶17

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entitled to withdraw the said amount after
they hand over the possession of the said
property to the defendant. In the event the
Plaintiffs fail to hand over the possession,
the defendant would be entitled to execute
the instant order.

¶20

9In the interregnum order dated 7th
February 2011 would operate i.e till the
Plaintiffs hand over possession.

¶21

10The Defendant would be entitled to
execute the instant order after a period of
one month of the deposit of the said amount
of Rs.18,00,000/- in this Court.”

¶22

4It appears that an application being Execution
Application (L) No.1432 of 2011 was filed for
execution of the said order by the present
appellant. The Chamber Summons No.1664 of 2011 was
taken out by the present appellant in the execution
application. In the Chamber Summons, a prayer was
made for the appointment of the Court Receiver for
the purpose of taking over possession of the suit
property from the second respondent (original second
plaintiff) and for handing over the same to the
appellant. The second prayer was for directing the
Court Receiver to get demarcation of the suit
property made through Survey Officer. On the said
Chamber Summons, the learned Single Judge on 12th
October 2011 passed an order issuing notice to the
second respondent to show cause as to why the Court

¶23

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Receiver should not be appointed in terms of the
prayer clause (a) of the Chamber Summons. The
learned Single Judge directed the Court Receiver to
visit the suit property and to get it demarcated
and measured and to submit a report before the
returnable date. The Court Receiver's Report No.46
of 2012 records that the possession of the suit land
was taken over by the Court Receiver on 11th January
2012.

¶25

5The appellant herein filed Chamber Summons
No.481 of 2012 seeking relief essentially against
the respondent Nos.3 and 4 herein and against the
Mumbai Municipal Corporation. The relief prayed for
was for directing the Court Receiver to take
physical possession of the suit property and to
deploy security guards and to ensure that
encroachment is not made by the respondent No.3
herein. A prayer for injunction was also made
against the respondent Nos.3 and 4 restraining them
from encroaching upon the suit land.

¶26

6By the impugned order, both the Chamber Summons
were disposed of by the learned Single Judge. The
learned Single Judge declined to grant relief of
putting the appellant in possession on the basis of
the prayers made in Chamber Summons No.1664 of 2011.
The Chamber Summons No.481 of 2012 was also
dismissed. A direction was given by the learned
Single Judge that the Court Receiver shall stand
discharged. In paragraph 8 of the impugned order,
the learned Single Judge observed that the property

¶27

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of which the Court Receiver has taken possession is
of a different shape and the size shown in the
yellow colour in the survey plan.

¶29

7As far as the impugned order in the Chamber
Summons No.481 of 2012 is concerned, a separate
Appeal being Appeal No.635 of 2012 was preferred by
the present appellant. The said appeal was disposed
of by order dated 10th April 2013 in terms of the
minutes of the order. The minutes of order were
between the present appellant and the respondent
Nos.3 and 4 herein. Under the minutes of order, an
officer of the City Survey was directed to carry out
a fresh survey for measuring the suit land as well
as the land claimed by the respondent Nos.3 and 4.

¶30

8Clause 4 of the minutes of the order read thus:

¶31

“4After the survey is carried out either
party if aggrieved, shall have liberty to
adopt appropriate remedy available in law. On
such survey and demarcation, if the board of
Court Receiver is found in any part of the
plot of the Respondent Nos.4 and 5, the same
shall be removed by the Court Receiver and
shifted to the plot of the Appellant after
expiry of three weeks from the date of
issuing such plan to both the parties.”

¶32

9We have heard the learned counsel for the
appellant, the learned senior counsel for the
respondent Nos.1 and 2 and the learned counsel for

¶33

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the respondent Nos.3 and 4. The learned counsel for
the appellant submitted that the Chamber Summons
No.1664 of 2011 was not opposed by the original
plaintiff (respondent Nos.1 and 2). He relied upon
the order passed in terms of the minutes of the
order in Appeal No.635 of 2012 and submitted that
now the respondent Nos.3 and 4 will have to adopt
appropriate remedy as a survey has been carried out
in terms of the order passed in Appeal No.635 of
2012. The learned senior counsel for the respondent
Nos.1 and 2 submits to the order of the Court in
view of the fact that before the learned Single
Judge, Chamber Summons No.1664 of 2011 was not
contested by the respondent Nos.1 and 2. He,
however, submits that the amount of Rs.18,00,000/-
deposited by the appellant with this Court with
interest accrued thereon be permitted to be
withdrawn by the respondent Nos.1 and 2. The learned
counsel for the respondent Nos.3 and 4 did not
dispute the fact that a survey has been carried out
in terms of the order in Appeal No.635 of 2012 and
stated that the said respondents desire to adopt
appropriate remedy against the said survey and
demarcation.

¶35

10We have already quoted the order of the learned
Single Judge dated 7th March 2011 passed in the
Notice of Motion No.2009 of 2010. The said order
has become final and therefore, the original
plaintiffs (respondent Nos.1 and 2) are bound by the
said order. In execution of the said order, the
Chamber Summons was taken out by the present

¶36

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appellant on which order dated 12th October 2011 was
passed to which we have already made a reference.
After survey was carried out in terms of the said
order, the Court Receiver took over the possession
of the suit land. We find that the respondent Nos.3
and 4 never challenged the order appointing the
Court Receiver. The said respondents were aware of
the order dated 7th March 2011 under section 28 of
the Specific Relief Act,1963 as well as the order
appointing the Court Receiver as a Chamber Summons
was taken out by the appellant seeking relief
against the said respondents.

¶38

11In short, the dispute raised by the respondent
Nos.3 and 4 appears to be as regards boundaries of
the land taken over by the Court Receiver. If that
be so it is for them to take out appropriate
proceedings in accordance with law. They will have
to establish their right, if any, over the land in
possession of the Court Receiver. However, the
order dated 7th March 2011 in Notice of Motion
No.2009 of 2010 will have to be implemented as it
has attained finality.

¶39

12Therefore, impugned order in so far as the
Chamber Summons No.1664 of 2011 is concerned will
have to be set aside and the Chamber Summons will
have to be made absolute in terms of prayer clause
(a). We may clarify here that in this Appeal we are
not deciding the dispute as regards identity of the
suit property and the objections raised by the
respondent Nos.3 and 4 to the survey carried out on

¶40

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the basis of the order passed in Appeal No.635 of
2012 will have to be kept open.

¶43

13Suffice it to say that the Court Receiver took
possession of the property from the original
plaintiffs and therefore, the said property will
have to be placed in possession of the appellant as
per the order dated 7th March 2011 which has become
final.

¶44

14Accordingly, we pass the following order:

¶45

(a) Impugned order so far as it relates to
the Chamber Summons No.1664 of 2011 is
quashed and set aside;

¶46

(b) We direct the Court Receiver to hand over
the possession of the property taken over by
him to the appellant within a period of one
month from the date on which an authenticated
copy of this order is produced by the
appellant;

¶47

(c)On handing over the possession to the
appellant, the Court Receiver will stand
dischargedwithoutpassingaccounts.
Needless to state that the appellant will
have to pay costs and charges of the Court
Receiver;

¶48

(d)All contentions raised by the respondent
Nos.3 and 4 as regards identity of the
property and correctness of the survey
carried out in terms of the order passed in
Appeal No.635 of 2012 are kept open. The

¶49

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remedies of the respondent Nos.3 and 4 are
kept open;

¶52

(e) We direct the Prothonotary and Senior
Master to pay a sum of Rs.18,00,000/-
deposited by the Appellant in this Court to
the respondent No.2 with interest accrued
thereon, if any;

¶53

(f) The amount shall be paid over to the
respondent No.2 on compliance being made by
the Court Receiver of the order passed by
this Court;

¶54

(g) The Court Receiver to file compliance
report within a period of one week from the
date on which the directions contained in
this order are complied with;

¶55

(h) Appeal is allowed on above terms.
Pending Notice of Motion does not survive and
the same is also disposed of;

¶56

(i) All concerned to act upon an
authenticated copy of this order.

¶57

(P.D.NAIK,J.)

Bijendra Singh Kailash Singh v. M/S. Tainwala Builders and Developers.

Case brief

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Bijendra Singh Kailash Singh v. M/S. Tainwala Builders and Developers.

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