1. The appeal impugns the order dated 1st August, 1997, which refused to grant any ad-interim Relief.
2. In a suit filed by the Bank for recovery of a large amount, by order dated 9th December, 1996, the learned Single Judge passed a decree. Under the decree, which was passed as the defendants submitted to the same; the learned Judge directed that the rate of interest should be @ a 12% p.a, instead of 18% p.a as claimed in the decree. The defendant was given time of six months to make the payment. Upon failure, the decree was to be as prayed for by the plaintiff Bank. The learned Judge also noted in the order that the defendant has not filed written statement. The defendant was to pay the decretal amount on or before 31st May, 1997. Upon failure of the defendant to pay the amount as directed not only the decree was to be in terms of prayer clause (a) as claimed by the Bank but also decree in terms of prayers (b), (c), (d) and (e). clause (e) which is relevant directed the immoveable properties, more particularly described in Exhibit “A” to the plaint, to be sold by the Commissioner for taking accounts or the Court Receiver by and under the decree and directions of this Court by public auction or by private treaty and the net sale proceeds thereof be applied in or towards the satisfaction of the plaintiff's decretal claim. Under Clause (d) sub-Clause (iv) the Receiver was to stand appointed as a Receiver in execution. As per the decree amount payable as on 31st May, 1997, comes to Rs. 1,35,25,349/-. It is the case of the defendant that in fact he had been to the Bank with this amount. However, the Bank refused to receive the said amount. In these proceedings we are not concerned with that aspect because the same will be determined in the proceedings which are pending before the learned Judge.
3. It appears that on 20th of June, 1997, the Bank moved the learned Judge for Judge's order and upon reading the affidavit of the officer of the Bank as also the report of the representative of the Court Receiver, by Order dated 20th June, 1997 the learned Judge was pleased to order that the Court Receiver, Bombay to take forcible possession of the immoveable property mentioned in Exhibit “A” along with structure standing thereon from defendants or from whosoever in possession by removing all obstructions with assistance of police; if necessary and by breaking open lock or locks. The learned Judge authorised the Court Receiver to take forcible possession of the immoveable property even in the absence of the defendants.
4. It appears that in pursuance to the said order, the representative of the Court Receiver went to Coimbatore and found that the immoveable property (Bungalow) was locked. Accordingly the representative of the Court Receiver took help of the local police and put the seal of the Receiver on the outer gate of the compound as also on the front door of the Bungalow indicating that the Receiver has taken actual possession. This took place on 30th June, 1997. Thereafter the defendant took out the Chamber Summons on 8th of July, 1997. In the Chamber Summons the prayers were as under:—
(a) that this Hon'ble Court may condone the delay if any in complying with the decree dated 9-12-1996 passed by his Lordship Mr. Justice Rane, by the defendant.
(b) that this Hon'ble Court may pass an order modifying the said decree dated 9-12-1996 and extend the time limit for the defendant to make the payment of the decretal amount as stated in the said judgment and order dated 9-12-1996.
(c) that this Hon'ble Court may pass an order directing the Court Receiver, High Court. Mumbai to remove their seal affixed by the Court Receiver, High Court, Mumbai, on 30-6-1997 on the said suit premises.
(d) that this Hon'ble Court may pass further order directing the plaintiff Bank to return to the defendant the original title, deeds and other documents lying with the plaintiffs Bank on making payment of the decretal amount of Rs. 1,35,25,349/- by the defendant as per the order dated 9-12-1996 passed by His Lordship Mr. Justice Radhakrishnan on Judge's order taken out by the plaintiff.
(e) Pending the hearing and final disposal of the Chamber Summons, this Hon'ble Court may pass an Order of Stay of the implementation of an order dated 20-6-1997, passed by His Lordship Mr. Justice Radhakrishnan on Judge's order taken out by the plaintiff.
(f) Pending the hearing and final disposal of the Chamber Summons, this Hon'ble Court may pass an order restraining the plaintiffs Bank from holding auction safe of the suit premises through Court Receiver, High Court, Mumbai.
(g) Ad-interim relief in terms of prayer (e) and (f) hereinabove;
(h) Cost of this Chamber Summons be provided.
(i) any other and further reliefs as the nature and circumstances of the case may require.
5. The learned Judge by his order dated 1st of August, 1997, recorded the fact that he heard the matter at length. The learned Counsel for the defendant submitted that in view of the judgment reported in A.I.R 1984 Bombay page 314 (Durga Mohan Joshi v. International Metal Industries)1, he does not press prayers (a) and (b) of the Chamber Summons. The learned Counsel for defendant submitted that defendant is desirous of leading evidence to establish that he had in fact tendered the entire decretal amount on or before 31st May, 1997 and, therefore, the Court adjourned the matter for recording of evidence. The learned Judge passed the order, “No ad interim Relief”.
6. Being aggrieved by the said order dated 1st of August, 1997, the present appeal has been preferred. It is relevant to notice that the defendant also moved the learned Judge for speaking to the minutes regarding the order dated 1st of August, 1997 impugned herein, upon which the learned Judge passed order on August 29, 1997. The learned Judge observed that the affidavit in support of the application states that the defendant had not instructed his Counsel not to press prayers (a) and (b) of the. Chamber Summons. The learned Judge recorded that he clearly remembers that learned Counsel Shri Desai appearing for the defendant had categorically stated that he does not want to press prayers (a) and (b) in Chamber Summons. Even Shri Rohit Kapadia, learned Counsel and his learned Junior Counsel Shri Shekhar Shetye, who were present on that day confirmed that Shri Desai categorically stated that he does not want to press prayers (a) and (b) in the Chamber Summons. The learned Judge observed that the order is clear and accordingly the application is disposed of.
7. Shri N.G Thakkar, learned Counsel appearing for the defendant pointed out the order passed by Justice Rane, and contended that while passing the decree the Court had appointed the Receiver in execution primarily to perform the sale of the property. He contended that the Court Receiver can exercise such powers as are conferred upon him by the Court. He further contended that merely because Court Receiver is appointed in execution, he is not conferred automatically all the powers under clause (b) to (d) of Order 40, Rule 1 of the Code of Civil Procedure, 1908. In that behalf he relied upon the decision of the Single Judge of this Court reported in A.I.R 1984 Bombay 403 (Venubai Annatrao v. Prabhabai Govindrao Jamkar)2, as also decision of the Allahabad High Court reported in A.I.R 1978 Allahabad page 189 (S.B Industries, Freegunj v. United Bank of India)3. Shri Thakkar also read paragraph from Kerr on “Receiver” as also a paragraph from Halsbury's law of England, 4th Edition paragraph 868 on page 442 thereof. Shri Thakkar further contended that when Receiver is appointed in execution to sell the property he is not entitled to disposses the person in occupation till the possession is required to be handed over to the purchaser. In that behalf he referred provisions of Order 21, Rule 95 of the Code of Civil Procedure. Shri Thakkar also relied upon the decision of the Calcutta High Court reported in A.I.R 1916 Calcutta page 533 (Smt. Radharani Mitra v. Smt. Kanaklata Roy)4, and (Ratan Shams Pillai v. Saba Pati Pillai)5, A.I.R 1925 Madras page 318. Shri Thakkar contended that the order dated 20th of June, 1997 proceeds on the assumption that the Court Receiver was empowered to take possession. In the submission of Shri Thakkar the action of the Receiver in sealing the property was thoroughly unwarranted as he was not expressly empowered by any Court in that behalf and the Receiver could take only legal and formal possession and cannot disposses the defendant without the specific order in that behalf. Shri Thakkar, therefore, submitted that ad-interim order as prayed for ought to have been granted. Shri Thakkar pointed out that it is a dwelling house of the defendant and in fact there is no need why defendant should be dispossessed prior to the actual sale and prior to the occasion of handing over the possession arises.
8. Shri Rohit Kapadia, the learned Counsel appearing for the plaintiff Bank firstly contended that this Court should not interfere as the order impugned is an Ad-interim order. Shri Kapadia contended that as a matter of fact there was no application for Ad-interim Relief in terms of prayer Clause (c) and as such the appeal itself is not maintainable. In any casein the facts and circumstances of the case submitted by Shri Kapadia, the order does not call for any Interference. Shri Kapadia took us through Chamber Summons and the prayers therein. He also read out the order dated 20th of June, 1997 and the impugned order. Shri Kapadia further pointed out the ground of appeal at page 133, as also order dated 29th August, 1997, passed by the learned Judge on speaking to the minutes. Shri Kapadia therefore, contended that conduct of the defendant is such that he deserves absolutely no equitable relief. The defendant has stated falsehood to serve his propose.
9. On the larger issue regarding the powers of the Receiver, Shri Kapadia relied upon the decision of the Division Bench of this Court reported in (Damodar v. Radhabai)6, A.I.R 1939 Bombay page 54, Shri Kapadia also relied upon the decision of the Full Bench of this Court reported in (CBI v. T.A Paper & Allied Products India Pvt. Ltd.)7, A.I.R 1995 Bombay 268 and the decision of the Apex Court reported in (Anthony C. Leo v. Nandlal Balkhshnan)8, (1996) 11 SCC 376 : A.I.R 1997 S.C page 173. Shri Kapadia read the provisions of Order 40, Rule 1 of the Code of Civil Procedure and contended that even when Receiver is appointed without any further order the Receiver has to exercise the powers as the only purpose normally which the Receiver serves is the preservation and protection of the property.
10. We must record here that we had fixed this matter only to decide the point as to whether the Receiver could be said to be invested with all the powers under order 40, Rule 1, the moment he is appointed and without any express orders of the Court in that behalf or that whether Receiver has to be invested by express order of the Court before he can exercise several powers enumerated in provisions of Order 40. However, on the factual metrix of this case, we find it unnecessary to decide the larger question as in the facts before us it is clear that by order dated 20th of June, 1997, Justice Radhakrishnan expressly directed the Receiver to take forcible physical possession. It is extremely relevant to notice that the said order has not been challenged. Strictly speaking Mr. Kapadia is absolutely right when he says that as a matter of fact no Ad-interim Relief was claimed in terms of prayer Clause (c) in the Chamber Summons. The Ad-interim Relief was claimed only in terms of prayer Clause (e) and (f).
11. Even then we considered whether there was any justification for the order dated 20th of June, 1997. It is extremely relevant to notice that in the facts of this case Receiver was appointed Receiver in execution and Receiver was also appointed for sale of the immoveable property. The report of the representative of the Court Receiver which was placed before Justice Radhakrishnan shows that the said representative went to Coimbatore for the purpose of taking physical possession of the suit property. The defendant No. 1 was not there. He was told by the wife of defendant No. 1 that defendant No. 1 would be back about 1 p.m Accordingly defendant No. 1 did arrive at the bungalow. The representative of the Court Receiver explained the purpose of the visit by showing the order of the Court and demanded physical possession of the suit property, the defendant refused on the ground that he will move the Court against the Court's order. As such the representative of the Court Receiver could not execute the Court's order. The affidavit in support by one Mr. Naik on behalf of the plaintiff pointed out all the facts and the orders as also the correspondence between the parties subsequent to the passing of the decree. The affidavit further points out that Court Receiver by letter dated 9th June, 1997, appointed 11 a.m on 16th June, 1997 as time for taking possession of the suit property and requested the parties to remain present. The Senior Manager of the plaintiff along with local representative and the representative of the Court Receiver visited the suit property and thereafter what happened is already mentioned in the report of the representative of the Court Receiver, to which we have already made a reference. It is on the basis of these facts that the learned Judge passed order of forcible on 20th of June, 1997.
12. Shri Thakkar submitted that order of 20th of June, 1997, is passed on the assumption that earlier order passed while passing the decree had directed the Receiver to take physical possession. We are of the opinion that it is not necessary to deal with this aspect of the matter. One thing is clear that the defendant has not paid a farthing till this date to the plaintiff Bank. Secondly the Receiver was appointed for the purpose of sale of the property. Thirdly the Receiver had already given an appointment for taking physical possession and when the representative of the Receiver went to Coimbatore, the complaint was not that the order of the Court does not authorise the Receiver to take physical possession but the defendant categorically stated that he wants to challenge the order. On the basis of this material the learned Judge passed express Order on 20th of June, 1997, directing the Receiver to take forcible possession. Taking into consideration the facts and circumstances of the case and the conduct of the defendant, we are of the view that learned Judge was justified in passing, the order dated 20th of June, 1997. Once we come to that conclusion then it becomes academic to deal with the question as to whether Receiver can take possession of the property without express order of the Court in that behalf because as stated hereinbefore in the facts of the case Receiver was expressly authorised to take forcible possession under the order of 20th of June, 1997. That being the case we are of the opinion that even assuming that prayer for Ad-interim Relief was pressed before the learned Judge, in our opinion the facts and circumstances of the case justify the refusal of Ad-interim Relief.
13. Accordingly we find no merit in the appeal and the appeal is dismissed with costs.
14. Appeal dismissed.
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