Babubhai Jeshankar Trivedi Vs Sushma Virendra Pal Varma and Navin Dunichand Mehra (Applicant/Intervener)

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29-NMS808-17.DOC

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Arun

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 808 OF 2017

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IN

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SUIT NO. 54 OF 1997

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Navin D Mehra…Applicant
In the matter between
Babubhai J Trivedi…Plaintiff
Versus
Sushma Virendra Pal Verma…Defendant

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WITH

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NOTICE OF MOTION NO. 813 OF 2017

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IN

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SUIT NO. 54 OF 1997

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Mr Rishikesh Soni, i/b Nishith Sharma, for the Plaintiffs.
Ms Sheela K Mistry, for Defendants.
Ms Rubia Taneja, with Shama Taneja, for the Applicant.

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CORAM:G.S. PATEL, J
DATED:17th July 2018

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PC:-

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1.Heard.

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Page 1 of 5
17th July 2018

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29-NMS808-17.DOC

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2.The Applicant, represented by Ms Taneja, filed this Notice of
Motion in June 2017 and served it on the sole Defendant. According
to the Plaintiff the Suit has been amended by an order of April 2002.
There is no such order and the Suit is as it was filed with a sole
Plaintiff and a sole Defendant.

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3.The Applicant is not a party to the Suit. He is the owner of
Flat No. 201, 2nd Floor, Building No.3 at Radhakrishna Nagar,
Andheri (East), Mumbai. This building was one of several that were
the subject matter of this Suit, Suit No. 55 of 1997 and Suit No. 3479
of 1997. Paragraphs 3, 5, 7 and 9 of the order of 18th October 2002
read thus:

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3.In so far s Flat Nos. 103, 104, 201, 202, 203, 204, 301,
302, 303, 304, 401, 402, 403, 404, 501, 502, 503, 504, 601,
602 and 604 from building no.2 and Flat Nos. 101, 102, 103,
201, 202, 204, 301, 302, 303, 304, 403, 404, 502, 503, 504,
601, 602 and 604 from building no.3 are concerned there is
no dispute between the parties that these flats have been
sold/allotted to the persons who are presently occupying
the flats.

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5.It is made clear that these persons who shall be
appointed as agents of the Court Receiver of the flats
specified in clause 3 above, they shall be at liberty to
dispose of the flats, if they so choose but before doing that
they will have to intimate the Court Receiver and the
parties of their intention to do so together with the
documents of transaction and the name of the purchaser.
In such an event the Court Receiver may appoint the
purchaser as his agent to be in occupation of the flat.

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Page 2 of 5
17th July 2018

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29-NMS808-17.DOC

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7.In so far as the other flats are concerned, after the
documents are submitted by the parties and the
occupants, the Court Receiver shall prepare a report and
seek further orders of the Court in relation to those flats
within 8 weeks from today.

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9.The persons who are directed to be appointed as
agents shall be at liberty to apply for Court to vacate the
office of appointment of Court Receiver of their flat after
the Court Receiver submits a report as indicated below.

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4.To begin with I find it extremely difficult to comprehend how
two parties could by consent have got a Receiver appointed of any
property belonging to third parties without joining those third
parties as party defendants to the suit. But that seems to be water
under the bridge, because the Affidavit in Support in paragraph 4
accepts that the Applicant handed over symbolic possession of the
flat to the Court Receiver on 7th December 2002 and has since
continued ostensibly as an agent of the Court Receiver but only on
an undertaking. I say this because there is no agency agreement with
the Applicant at all. The clauses of the order set out above make it
clear that the appointment of a Court Receiver of these flats
belonging to third parties was purely symbolic, so that the Court
Receiver would have an accurate record of transactions in respect of
those flats and nothing further. Clause 3 made it clear that neither
the Plaintiff nor the Defendant claimed any right or possession or
otherwise in respect of these flats owned by third parties. Clause 5
allowed the third parties to even dispose of their respective flats but
with prior intimation to the Court Receiver. On receipt of
documents, the Court Receiver was to prepare a report. The
Applicant moved to the Court Receiver, but there was no follow up

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Page 3 of 5
17th July 2018

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29-NMS808-17.DOC

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action. Clause 9 made it clear, if there was any remaining doubt, that
all those third party agents would be entitled to apply to Court to
vacate the appointment of the Receiver in respect of their respective
flat after the Court Receiver submitted a report.

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5.If the Court Receiver has, despite requests, not obtained
orders, then it is clearly open to the Applicant to file a Chamber
Summons seeking this order.

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6.Paragraph 6 of the Affidavit in Support states that the flat was
purchased by the Applicant under an agreement of sale dated 26th
April 1996. This is not only registered, but it is before the date of
institution of any of these three Suits. The flat originally stood in the
joint names of the Applicant’s father Dunichand, the Applicant’s
mother Saroj and the Applicant himself. Dunichand died on 11th
October 2005. Saroj died on 4th December 2003. The Applicant has
been in continuous and uninterrupted possession of the flat.

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7.Even otherwise it is pointed out in paragraph 10 that there are
several other cases that have resulted in appropriate orders of this
Court such as the order of 14th September 2005 of Mr Anoop V
Mohta J (as he then was) in Notice of Motion No. 2417 of 2003.
There is another order of the same date. One of the orders of Anoop
V Mohta J is annexed at page 46. At that time the Advocate
appearing for the Plaintiff in this very Suit expressly stated that
there was no objection provided this was without prejudice to the
Plaintiff’s rights and contentions in the main Suit. That of course

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Page 4 of 5
17th July 2018

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29-NMS808-17.DOC

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goes without saying. The order also notes a previous order of 28th
January 2004 that was similar in nature.

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8.There is absolutely no reason why a similar order should not
be made on this Notice of Motion. Accordingly, the present Notice
of Motion is made absolute in terms of the prayer clause (a). This is
without prejudice to the rival rights and contentions of the sole
Plaintiff and sole Defendant in the Suit.

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9.The Notice of Motion is made absolute in these terms. No
order as to costs.

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10.In view of the order passed in Notice of Motion No. 808 of
2017, Notice of Motion No. 813 of 2017 does not survive and
disposed of accordingly.

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(G. S. PATEL, J)

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Page 5 of 5
17th July 2018

Babubhai Jeshankar Trivedi v. Sushma Virendra Pal Varma and Navin Dunichand Mehra (Applicant/Intervener)

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Babubhai Jeshankar Trivedi v. Sushma Virendra Pal Varma and Navin Dunichand Mehra (Applicant/Intervener)

Case brief

What is this about?

What did the court decide?

What the court decided

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