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Vandana Mimani v/s Sunil Jhawar


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

Company & Directors' Information:- VANDANA PRIVATE LIMITED [Strike Off] CIN = U51909KA1984PTC006136

    C.O. No. 3673 of 2018 with CAN Nos. 9706,9708 of 2018

    Decided On, 22 January 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Appearing Parties: Hiranmay Bhattacharyya, Debanik Banerjee, Shyamal Chakraborty, Subhojit Chakraborty, Arijit Bardhan, Sayan Sinha, Banshari Bhusan Sarkar, Subhra Nag, Pratit Sarkar, Ayanava Bhattacharyya, Advocates.



Judgment Text

The scope of the present revisional application is confined to grant of police help by the trial court apparently to implement an order of appointment of Receiver. It was alleged by the plaintiffs in the said suit, the scope of which pertains to a dispute relating to a partnership business between the main contesting parties, that the Receiver was being obstructed from complying with the order of the trial court whereby the Receiver was permitted to look into the accounts and to distribute the profits of the business among the partners. It was alleged by the plaintiffs in the court below that the suit premises had been kept under lock and key illegally, restricting the Receiver from entering the property to comply with the order of the court. On such allegations, the trial court, by the impugned order, inter alia, directed the O.C. Burrabazar Police Station to provide police help to the Receiver to inspect the premises-in-question thoroughly, authorising the Receiver to break open the padlock of the "business premises" in presence of the police personnel of the Burrabazar Police Station and also in presence of the parties and after inspection and taking stock of the materials and items etc. inside the said premises, the Receiver was further authorised to put all the entrances of the suit premises under his lock and key. The Receiver was also directed not to deliver any duplicate key or keys of the said premises to any of the parties to the suit till further order.

2. The present petitioners also allege that they are landlords in respect of the suit premises and, by virtue of the impugned order, the plaintiffs obtained a relief which is even beyond the scope of the suit. If the Receiver is permitted to take exclusive possession of the suit premises by virtue of the impugned order, that would hamper the rights of the petitioners as well as the tenants who have been subsequently inducted to the suit property according to the petitioners.

3. Moreover, learned counsel for the petitioners submits that the impugned order granted rights to the Receiver as regards exclusive possession of the premises, which were much beyond the charter of the Receiver as per the order of his appointment.

4. In connection with the civil revisional application, two interlocutory applications have been preferred, bearing CAN 9706 of 2018 and CAN 9708 of 2018, filed by separate persons claiming to have been inducted independently by the landlords/petitioners subsequent to alleged surrender of the suit property by one of the partners to the opposite party No. 3/firm, being the present opposite party No. 4, on January 3, 2013. It is submitted on behalf of the said applicants that subsequent to such surrender, the present applicants in the respective applications were inducted separately as independent tenants in respect of different portions of the second floor of the suit property, which is the subject-matter of the present suit. By the impugned order, it if alleged, the applicants have virtually been ousted from the second floor despite having legitimate tenancy rights. In this regard, learned counsel for the applicants places reliance upon certain documents, including rent receipts allegedly issued by the landlords as well as trade licence and electric kills.

5. However, a perusal of such documents shows that those were mostly issued in the year 2017, that is, much after the filing of the suit and in some cases, even after the appointment of Receiver on August 10, 2017. Since, for the present proceeding, the alleged landlords and the applicants sail on the same boat and in view of the rent receipts having been issued mostly during a period which coincides with the appointment of Receiver, it is prima facie doubtful as to whether the applicants actually have any tenancy rights or are colluding with the alleged landlords for the purpose of the present revisional application. However, even such findings as rendered above would be premature, since the documents on which the applicants relied on are yet to be produced formally in the court below, particularly in view of the fact that two independent applications by the applicants respectively, for addition as parties to the suit, are pending before the trial court. As such, any further observation would render those applications infructuous and hence this Court desists from making any observations on merits of the rights of the applicants in the suit. However, it is made clear that no prima facie case sufficient to be added as parties to the present revisional application has been made out by the applicants.

6. Accordingly, CAN 9706 of 2018 and CAN 9708 of 2018 are dismissed on contest without any order as to costs.

7. Learned counsel for the opposite No. 5 submits that the said opposite party has already been added in the suit on the strength of the alleged tenancy right of the said opposite party. The case of opposite party No. 5 is similar to the applicants, but different in respect of the fact that there were certain documents produced by the opposite party No. 5 pertaining to its alleged tenancy right, which preceded the order of appointment of Receiver and even the filing of the suit. However, mere addition of party does not confer any right on the opposite party No. 5 as well and whatever rights are being claimed by the opposite party No. 5 will be finally decided in the suit. Hence, the rights of the opposite party No. 5 are left open to be decided at the trial of the suit.

8. Learned counsel for the contesting opposite parties, that is, the plaintiffs/opposite party Nos. 1 and 2, submits that the impugned order in the present revisional application was a necessary consequence to the order of appointment of Receiver. The challenge against the order of appointment of Receiver is already pending by way of an appeal, but no final order has been passed as yet in the same. As such, it is argued, the order appointing Receiver still stands and had to be implemented in the manner as done in the impugned order.

9. It is further submitted on behalf of the contesting opposite party Nos. 1 and 2, that unless the Receiver is permitted to enter into the premises, the order of appointment of Receiver would be rendered toothless.

10. Upon hearing all the parties, it is evident that the charter of the Receiver, by virtue of the order of appointment dated August 10, 2017, was confined to keeping the accounts of the business of the partnership after perusing all the materials and documents in connection with the said business in presence of the parties and to distribute the share of the profits monthly in equal shares to the partners, after deducting the monthly remuneration of the Receiver. The Receiver was also to submit quarterly reports to the trial court until further order.

11. However, by the impugned order dated April 13, 2018, not only was the Receiver permitted to break open the padlock affixed, apparently unlawfully, to the suit premises with police help but also to put all the entrances of the suit premises under "his" lock and key. Not only that, the Receiver was further directed not to deliver any duplicate key or keys of the suit premises to any of the parties to the suit till further order. Such a rider to the impugned order obviously confers exclusive possession of the suit premises on the Receiver, which the Receiver was not even empowered by the trial court to do. In fact, since several parties have got conflicting claims in respect of the second floor of the suit premises, it would be premature to arrive at any final observation as to the rights of the sparring parties in the suit as well as some other persons who have not yet been impleaded in the suit. In the event the alleged landlords/petitioners succeeds on their claim and/or the applicants in CAN 9706 of 2018 and CAN 9708 of 2018 as well as the opposite party No. 5 are able to establish at the final hearing of the suit that they have got valuable rights in the property, the impugned order would a fetter and premature seal of court to curtail such rights. As such, the portion of the impugned order, whereby the Receiver was given exclusive possession for all practical purposes, cannot stand a moment's scrutiny. However, since the order of appointment of Receiver still exists, the court below was right in permitting the padlock to be broken open to give the Receiver access to the "business premises".

12. Accordingly, C.O. No.3673 of 2018 is disposed of, thereby modifying the impugned order to the extent that the portion of the said order, whereby the Receiver was authorised to put all the entrances of the suit premises under his lock and key and was directed not to deliver any duplicate key or keys of the said premises to any of the parties to the suit till further order, is set aside.

13. It is made clear that the Receiver will now have police help to break open the padlock of the business p

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remises only for the purpose of giving effect to the order dated August 10, 2017 whereby the said Receiver was appointed by the trial court, of course, subject to the result of the appeal against such appointment order. 14. It is further made clear that none of the rights and contentions of the parties to the present revisional application and/or applicants in the connected applications, which were disposed of previously in this order, will be affected in any manner by any of the observations made herein or in the impugned order. All parties and the said applicants will be free to canvass their rights and contentions in the court below and the trial court will be free to decide such rights in accordance with law without being fettered in any manner by any of the observations made herein. 15. There will be no order as to costs. 16. Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
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