Vikrambhai vs Harishbhai on 8 April, 2010

0
85
Gujarat High Court
Vikrambhai vs Harishbhai on 8 April, 2010
Author: K.M.Thaker,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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FA/5622/2008	 5/ 7	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

FIRST
APPEAL No. 5622 of 2008
 

 
 
=========================================================

 

VIKRAMBHAI
PUNJABHAI PALKHIWALA AS L.R.OF DECD. - Appellant(s)
 

Versus
 

HARISHBHAI
BABUBHAI PALKHIWALA & 7 - Defendant(s)
 

=========================================================
 
Appearance
: 
MS
MEGHA JANI for
Appellant(s) : 1, 
None for Defendant(s) : 1 - 2, 2.2.1, 2.2.2,
2.2.3,4 - 8. 
MR TEJAS P SATTA for Defendant(s) : 1, 1.2.1,
1.2.2,1.2.3  
- for Defendant(s) :
3, 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE K.M.THAKER
		
	

 

 
 


 

Date
: 08/04/2010 

 

 
 
ORAL
ORDER

Present
appeal arises from the preliminary decree passed by City Civil Court,
Ahmedabad in Civil Suit No.1257 of 1981. The learned Trial Court has
by the preliminary decree impugned in present appeal, passed below
mentioned directions:

A
preliminary decree is passed as under:

It
is hereby declared that partnership firm Punjabhai Mohanbhai
Palkhiwala shall stand dissolved from Kartak Sud 1, S. Y. 2035 to
18/05/1981.

It
is hereby declared that heirs of deceased plaintiff Sushilaben have
1/4th share, jointly, and heirs of defendant No.1
Punjabhai Monhanlal have 3/4th Share, jointly, in the
partnership firm Punjabhai Mohanlal Palkhiwala from Kartak Sud
1, S. Y. 2035 to 18/05/1981.

It
is ordered that the matter be sent to the Office of the Commissioner
for Taking Accounts, Ahmedabad who shall be the receiver of the
partnership estate and effects in this suit and who shall get in all
the outstanding boom-debts and claims of the partnership.

It
is ordered that the following accounts be taken by the Commissioner
for Taking Accounts:

An
account of the credits, property and effects now belonging to the
said partnership.

An
account of the debts and liabilities of the said partnership.

An
account of all dealings and transactions of partnership firm.

It
is hereby ordered that the Commissioner for Taking Accounts shall,
after taking accounts as stated above, submit his report to this
Court within six months from today.

The
matter is now adjourned to 29/12/2008 for passing final decree after
receipt of the report from the Commissioner for Taking Accounts.

The
appellant herein has brought under challenge the said preliminary
decree and the aforesaid directions to the limited extent so far as
the learned Trial Court has appointed the Commissioner for Taking
Accounts as receiver of Shop No.19, Rangwala Market, Ahmedabad.
After making submissions to some extent by both the sides, a
consensus has been arrived at. Thus, on the basis of the consensus,
following order is passed:

The
directions issued by the learned Trial Court by virtue of the
preliminary decree dated 17/6/2008 shall be carried out and the
Commissioner for Taking Accounts appointed by the learned Trial Court
as receiver shall proceed to complete the exercise of Taking Accounts
in accordance with the directions. Since, in view of the directions
the appellant herein shall have to hand over the possession of the
premises in question it is suggested by the appellant that the
appellant may, in view of the fact that the appellant is carrying-on
its business activities from the said premises, hand over the
possession, symbolically but may continue to carry on its business
activities. The opponent has, therefore and without prejudice to
their rights and contentions, accepted the suggestion. Hence it is
ordered that the appellant shall hand over the symbolic possession of
the premises in question to the Commissioner for Taking Accounts
as a receiver. The Commissioner will take the symbolic
possession after giving notice to both the sides and shall obtain
acknowledgment on the record taking symbolic possession. Thereafter,
the learned Commissioner shall proceed to complete the exercise of
Taking Accounts and submit the report to the learned Trial Court as
per the directions contained in the preliminary decree dated
17/6/2008.

The
appellant shall continue to discharge the obligation and liability
towards payment of rent and all taxes until the final decree is
passed and the payments towards rent and taxes made subsequent to the
date of preliminary decree will be subject to the directions that may
be issued in the final decree.

It
is clarified that the order permitting the appellant to continue to
be in occupation of the premises in question (viz. Shop No.19,
Rangwala Market, Ahmedabad) and/or the direction to continue to pay
the rent and taxes shall not give rise to any right or claim or
equity in favour of the appellant and on the basis of this order or
agreement/consensus by the opponent the appellant shall not claim
contrary to preliminary decree any right or equity in any manner
whatsoever and it is understood that it is only by way of ad interim
arrangement and by consensus that the appellant is permitted to
continue in occupation of the premises in question and the
Commissioner is asked to take only symbolic possession at this stage.

If
the final judgment and decree is rendered against the present
appellant, then the appellant shall hand over the vacant possession
formally and in accordance with the directions in the final decree.
However, it would not prejudice, in any manner, the appellant’s right
to carry out further proceedings including proceedings by way of
appeal against the final judgment and decree and/or seek any interim
relief during the pendency of appeal if entertained by the Court.
The possession which shall be handed over formally after the final
decree will, i.e. after the appeal is presented and any order of
interim relief is passed, be subject to the order that may be passed
by the appellate Court.

In
view of the aforesaid direction and clarification in light of the
consensus between the parties, any further order is not required.
Hence the First Appeal stands disposed of as per the order in terms
of the consensus. The parties will act as per the aforesaid
directions and observations.

The
appellant shall file an undertaking to the aforesaid effect i.e. it
will give symbolic possession to the Commissioner and that if the
final decree is passed against it, the appellant shall formally hand
over the actual possession of the premises in question which shall be
subject to its right to file appeal and also the undertaking shall be
filed subject to the order if any, that may be passed by appellate
court within two weeks before the learned Trial Court. The
undertaking shall be signed and executed by all the
appellants/interested persons stating clearly that they are in
exclusive possession of the suit premises in question (i.e. they have
not inducted any one in the premises).

Learned
advocate Ms. Jani appearing for the appellant has submitted that the
appellant may hand over the symbolic possession of the premises in
question by way of addressing a communication to the effect that the
symbolic possession is being handed over. It would be open to the
appellant to address a communication to the said effect with the copy
to the opponents. A copy of said communication, supported by
affidavit, will be placed on record before the Trial Court also.
When such communication is received by the learned Commissioner, he
shall pass necessary formal order taking the symbolic possession and
then shall report to the learned Trial Court.

Learned
Senior Counsel Mr. Nayak for the opponent has submitted that the
Civil Suit is almost 19 years old and now that the preliminary decree
is passed the Civil Court may expedite the hearing of the special
suit.

It
is hoped that subject to its cause list, the learned Trial Court
shall endeavor to the Court complete the final hearing of the suit
within six months after receipt of this order.

The
First Appeal stands disposed of accordingly.

(K.M.THAKER,
J.)

(ila)

   

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