JUDGMENT
Rajendra Nath Sinha, J.
1. This appeal has been filed by the defendant/ appellant being aggrieved and dissatisfied with the order dated 29th April, 2003 passed by the learned Civil Judge, Senior Division, Second Court, Howrah in Title Suit No. 152 of 2000 wherein the learned Court allowed the petition under Order 40, Rule 1 by appointing a receiver for the suit properties.
2. The background of the suit may be stated in brief:
The plaintiff/respondent filed the suit for recovery of possession and mesne profit as against the defendant/appellant in respect of quite a large number of suit properties being municipal holding numbers 52, 52A and 52/1- 52/35 and 52/36, J. N. Mukherjee Road, Salkia, Howrah. It is further stated in the plaint that the relationship in between the parties is that of the owner of the suit properties and the lessee from time to time of different deeds with a clause for renewal of the lease.
3. The eventual renewal of the lease was within 30th September, 1995 which was put in writing. According to the plaintiff/respondent the defendant/appellant failed and neglected to get the lease renewed, but continued to hold the properties leading to the filing of the suit. The reliefs claimed in the plaint consist amongst others are recovery of khas possession of the entire ‘A’ schedule premises measuring about 12 bighas having the aforesaid municipal holding numbers, a decree for mesne profits on and from 1st January, 1998 at the rate of Rs. 4,50,000/- per month till recovery of khas possession, receiver, injunction, attachment and costs etc.
4. As the defendant/appellant did not seek to renew the lease within 30th September, 1995 in writing their period of lease expires on 31st March, 1996 (within six months from the last date of seeking renewal). They were also called upon to hand over peaceful and vacant possession but of no effect, leading to the filing of the aforesaid suit. A claim of Rs. 2,53,36.000/- towards mesne profit at the rate of Rs. 4,50,000/- per month from 1st January, 1998 till the date of institution of the suit was prayed. It has been alleged that the defendant/ appellants were collecting rents and/or money from the inducted sub-lessees without the consent of the petitioners and have allowed several unauthorised occupants in the suit property, thus allowing illegal and unauthorised person to occupy the suit property. It has also been averred in the petition that the defendant/appellants were trying to transfer and/or encumber the suit properties in the aforesaid manner. Defendant/appellant’s contention is that by a letter dated 29.9.1995 they exercised their right of renewal.
5. Now the question in between the parties as to whether the lease has been determined and/or if the defendant/appellants are continuing after exercising right of renewal?
6. The plaintiff/respondent filed the petition under Order 40 Rule 1 read with Section 151 of the Civil Procedure Code, seeking for appointment of a receiver on the grounds amongst others that the defendant/appellant has inducted several sub-lessees without the consent of the petitioner, allowed several unauthorised occupants in the suit properties collecting rents, and/or money from such sub-lessees and unauthorised occupants. It has also been contended that they are also trying to transfer or alienate the suit properties for wrongful gain and/or try to encumber the properties by raising the illegal and unauthorised construction and taking huge salami by inducting sub-tenants. Prayer was made for appointment of the receiver so that rents may be collected from the sub-lessees and unauthorised occupants may be released therefrom and a proper account may be made and handed over the same to the plaintiff/ respondent.
7. The matter was initially heard on 5.11.2003 and judgment was reserved by making it a ‘CAV’. Thereafter the plaintiff/respondent has come up with an affidavit drawing the attention of the Court in respect of some subsequent events. Both the sides exchanged affidavits in connection with the same.
8. It is alleged that one Babulal Show and his son Rajesh Kumar Show were inducted tenants after receiving a salami of Rs. 85,000/- and Rs. 45,000/-respectively. They affirmed affidavits before notary public on 5.8.2003.
9. During the intervening period since 16.6 order of this Court some seven new tenants/occupants’ names find place amidst the suit properties. In respect of six tenants their serial number has been changed.
10. It has further been alleged that despite an undertaking given in Court for payment of municipal dues, the opposite party has failed and neglected to make payment resulting in issuance of order of warrant of attachment and sale under Section 120(1) and Section. 122(2) of the Howrah Municipal Corporation Act, 1980. In respect of 9 holding numbers 52/1-52/36, all in respect of tax dues for the 3rd quarter 03′-04′ in its entirety totalling Rs. 12,73,436/-.
11. Different photocopies of some documents, i.e., demands of the municipalities have been annexed together with the petition and it has been urged that the receiver has already been appointed and despite undertaking in Court no such payment has been made. The aforesaid application has been controverted by submitting an affidavit-in-opposition which is one of denial in respect of any order dated 16th June and it has further been submitted therein that the said Babulal Show and his son Rajesh Kumar Show have sworn affidavit on 5.8.2003 prior to the hearing of this case but no attention of this Court was drawn to that effect in course of hearing then. It has been averred therein that it was to mislead this Court and delaying the pronouncement of judgment in respect of municipal bills. It has been submitted that whenever the Municipal Authority served bills and/or notice of demand for payment of tax they have paid the same and the last of such demand was made by the Municipal Authority on 25th November, 2002 claiming Rs. 20.237/-. It appears from the said notice of demand that it was addressed in the name of the plaintiff as owner and in the name of the defendant as the occupier. The photocopies of the notices are dated 25th November, 2003 and the receipts of payments are annexed herewith and marked as Annexure ‘R3’ collectively.
12. In the affidavit in reply it has been averred that it has been ascertained from the office of the municipal corporation that the bills then presented and served upon the respective premises and as such it was incorrect on the part of the defendant/appellant to deny on oath that they did not receive at all the bills.
13. It further transpires that the receiver appointed by the Court below has taken over and correspondence is shown in his name from Annexure ‘C’ to the affidavit-in-reply by the defendant Lalit Kumar Bagla sworn on 27.11.2003. It also goes to show from Annexure ‘C’ series wherein the receiver has written to the Collector, Howrah Municipal Corporation stating that he was so appointed but not authorised to make any payment in the absence of any specific direction from the learned Court and as such he requested to keep the matter pending.
14. On the aforesaid submission Mr. S. P. Roychowdhury, learned senior advocate ably assisted by Mr. Sukumar Bhattacharya has contended that the appointment of receiver being a specific relief, the very nature of the suit be looked into. The case in hand is neither a suit for partition and/or for dissolution of partnership or accounts where distribution of profits etc. is involved. In this case the defendant/appellant is admittedly a lessee in possession and the only question as to whether the lease has been determined and/or renewal sought is to be adjudicated. Keeping in view of the nature of the suit itself and in the absence of any allegation of commission of waste, dereliction of duties in maintaining the suit properties in proper conditions and/or neglecting to look after the same, this impugned order ought not to have been passed. Sri. Anindya Mitra learned senior counsel leading the plaintiff/respondent side has contended that the property is a very valuable property worth several crores of rupees and that in the absence of due preservation of the suit properties and collection of the rents from the sub-tenants and the occupants and outsiders remaining therein, the properties may be encumbered and it will be hazardous for the plaintiff/respondents even if he succeeded eventually in the suit itself. Furthermore the subsequent development has been shown that the municipal taxes have been accumulated to the extent of Rs. 12 lakhs of rupees which are not been paid but according to the terms of the lease is payable by the lessee for both the shares and this is the admitted position keeping in view of the Annexure ‘4’ of the affidavit-in-opposition filed on behalf of the defendant/appellant.
15. Sri Roychowdhury in course of his argument has contended that in the present context of the accumulated arrears are to be paid by way of instalments of Rs. 1,00,000/- within a month and rest by instalments.
16. Mr. Mitra has contended that whatever be the nature of the suit till its pendency it has got to be looked into that keeping in view of urgency and imminent danger to prevent any waste and/or dereliction of duties in maintaining the suit property free from all encumbrance is the prime duty of the lessee which in the present context goes to show that the defendant/ respondent lessee has failed to discharge.
17. Appointment, of a receiver is one of the harshest remedies which the law provides for the enforcement of right. If it is shown that the person seeking the appointment of a receiver is exposed to manifest peril a receiver may be appointed. In this instant case there is glaring example of non-payment of municipal taxes which is accumulated to the extent of more than 12 lakh rupees leading to the issue of warrant of attachment and notice of lease under Section 120(1) and Section 122(2) of the Howrah Municipal Corporation Act.
18. Keeping in view of the aforesaid discussion and the principles of appointment of receiver in mind we are of the view that it is a fit case for appointment of a receiver as is apparent from the materials on record.
19. On perusal of the entire materials we find that Sri Debabrata Biswas, advocate, who has been appointed receiver has opened an account in his name but we are of the view that in the event of appointment as a receiver one should open the account not in the personal/individual capacity but describing himself as the appointed receiver by the Court mentioning the number of suit itself. We do not propose to make any further order and/or directions/guidelines to the receiver as it is the domain of the learned Court below wherever he has been appointed to seek directions if so necessary from the learned Court below from time to time and to be governed by the directions/orders of the appointing Court.
20. In these circumstances, we feel that the receiver should continue and collect the rent and take steps for liquidating the municipal rates. At the same time, as offered by Mr. Roychowdhury; his clients may pay Rs. 1 lac within a month and may continue to pay @ Rs. 30,000/- per month to liquidate the municipal rates.
21. In the result, the appeal be dismissed but in the circumstance there will be no order as to costs.
22. All the CAN petition stands disposed of accordingly.