{"id":234633,"date":"2010-09-13T00:00:00","date_gmt":"2010-09-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vinay-vs-the-court-receiver-on-13-september-2010"},"modified":"2017-03-04T10:35:38","modified_gmt":"2017-03-04T05:05:38","slug":"vinay-vs-the-court-receiver-on-13-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vinay-vs-the-court-receiver-on-13-september-2010","title":{"rendered":"Vinay vs The Court Receiver on 13 September, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vinay vs The Court Receiver on 13 September, 2010<\/div>\n
Bench: Rajesh G. Ketkar<\/div>\n
                                             1\n\n\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                  CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                                    \n                      FIRST APPEAL NO.704 OF 2010\n\n\n\n\n                                                            \n                                 WITH\n                   CIVIL APPLICATION NO.2799 OF 2010\n\n    1. Vinay S\/o.Ambadas Kaikini,\n\n\n\n\n                                                           \n      Male, Indian Inhabitant,\n      Residing at Room No.4, Purshottam Building No.\"B\",\n      Purshottam Tribhuvandas Road, Mumbai 400 004.\n\n\n\n\n                                                \n    2. Ajit Maneshwar Shetty,\n       Adult, Occupation: Business,\n       Indian Inhabitant, carrying on business at\n                               \n       Room No.4, Purshottam Building No.\"B\",\n       Purshottam\/Tribhuvandas Road, Mumbai 400 004.        .. Appellants\n                              \n          V\/s\n\n    The Court Receiver,\n    High Court of Judicature at Bombay, having her office\n    at Bank of India Building, M.G.Road, Mumbai 400 001.    ..      Respondent\n         \n\n\n    Mr.K.K.V.Kurup for the Appellants.\n      \n\n\n\n    Mr.Y.S.Bhate for the Respondent.\n                                         CORAM: R.G.KETKAR, J.\n                                          DATE: 13th September, 2010.\n\n    JUDGMENT:\n<\/pre>\n
       1. Heard Mr.K.K.V.Kurup, learned counsel for the Appellants
\n           and Mr.Y.S.Bhate, learned counsel for the Respondent at
\n           length. Admit. Mr.Bhate waives service on behalf of the<\/p>\n
           Respondent. By consent of the parties, appeal is taken up for
\n           final hearing forthwith.\n<\/p>\n
       2. This appeal is preferred               by the original Defendants
\n           challenging the judgment and decree dated 22nd February,<\/p>\n
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\n                                    2<\/span><\/p>\n
      2010 passed by learned Judge of the Bombay City Civil Court
\n      at Bombay in S.C.Suit No.1154 of 2000. By that judgment, the<\/p>\n
      learned trial Judge decreed the suit instituted by Respondent in
\n      terms of prayer clause (a). Appellants shall hereinafter be<\/p>\n
      referred as original Defendants and Respondent shall
\n      hereinafter be referred as plaintiff. The facts giving rise to the<\/p>\n
      filing of the present appeal are as under:-\n<\/p>\n
    3. Plaintiff instituted suit for declaration that Defendants are
\n      tresspassers qua the premises bearing Room No.4 in<\/p>\n
      Purshottam     Building
\n                         ig       No.B,     situate      at      Purchottam
\n      Tribhuwandas Road, Mumbai 400 004 (for short the suit
\n      premises) and for direction to the Defendants to quit, vacate<\/p>\n
      and hand over vacant and peaceful possession of the suit
\n      premises in favour of the plaintiff for implementation of the<\/p>\n
      orders passed by the City Civil Court, Mumbai. Plaintiff came<\/p>\n
      with the case that one Narayan Shivram Thakur had filed
\n      S.C.Suit No.9083 of 1969 in the City Civil Court at Bombay
\n      for dissolution of partnership firm viz. Sunder Printing Press<\/p>\n
      and for consequential reliefs therein against its partners
\n      Vishwanath Ramchandra Sawant being Defendant No.1 and
\n      Vasant Achyut Desai being Defendant No.2. Partnership was<\/p>\n
      carrying on business from Room Nos.3, 4 and 6 in Purshottam
\n      Building No.B. Room Nos.3, 4 and 6 were tenanted premises.
\n      There was common rent receipts for Room Nos.3 & 4 which
\n      stood in the name of one Nanabhai Parab, original tenant of<\/p>\n
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\n                                    3<\/span><\/p>\n
      the said rooms. Even at present in respect Room Nos.3 & 4
\n      rent receipts stand in the name of said Parab. The monthly<\/p>\n
      rent of Room Nos. 3 & 4 is Rs.347\/-. Plaintiff further asserted
\n      that rent receipts in respect of Room No.6 was and\/or is in the<\/p>\n
      name of Defendant No.2-Vasant Achyut Desai in Suit No.
\n      9083 of 1969. Plaintiff and the Defendants in the the said suit<\/p>\n
      were in use and occupation and possession of the Room Nos.3,
\n      4 and 6 and were carrying on partnership business from the
\n      said premises. The rent of Room Nos.3 & 4 was regularly paid<\/p>\n
      by Defendant No.2 – Vasant Desai in the said suit and after his<\/p>\n
      death, by his heirs and legal representatives.\n<\/p>\n
    4. Suit No.9083 of 1969 was amicably settled between the parties<\/p>\n
      and they filed consent terms dated 27th April, 1981. Under
\n      clause 4 of the consent terms, Court Receiver, High Court,<\/p>\n
      Bombay was appointed as a receiver of all assets of the suit<\/p>\n
      partnership and also of tenancy rights of the premises held by
\n      the partnership firm, as also of the business carried on by the
\n      partnership firm. The decree came to be passed in terms of the<\/p>\n
      consent terms dated 27th April, 1981.\n<\/p>\n
    5. It is the case of the plaintiff that Defendant No.1 –
\n      Smt.Garijabai R.Kaikini and original Defendant No.2 –\n<\/p>\n
      Ambadas Ramrao Kaikini in the present suit claimed to be
\n      heirs and legal representatives of Ramrao Kaikini who was
\n      purportedly in possession of the suit premises. Presently
\n      Defendants No.3- Ajit M.Shetty is in possession of the suit<\/p>\n
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\n                                      4<\/span><\/p>\n
       premises illegally and he was put in possession by
\n       Smt.Girijabai and Ambadas Kaikini.\n<\/p>\n
    6. Plaintiff further asserted that in Suit No.9083 of 1969, said
\n       Ramrao took out Notice of Motion No.1176\/1982 for<\/p>\n
       possession of Room No.3, alleging that the same was handed
\n       over by Court Receiver to Mr. Ashok Vishwanath Sawant, son<\/p>\n
       of Defendant No.1 in Suit No.9083 of 1969. Said Ramrao also
\n       sought protection against eviction from suit premises and
\n       prayed that he should not be evicted from the suit premises<\/p>\n
       without following due process of law. Said Notice of Motion<\/p>\n
       was opposed by Mr.Ashok Vishwanath Sawant by filing reply.\n<\/p>\n
    7. Plaintiff further asserted that Vasant Achut Desai, Defendant<\/p>\n
       No.2 in Suit No.9083\/1969 took out Notice of Motion No.
\n       2159\/1982 in the said suit for direction to the Court receiver to<\/p>\n
       take possession of the suit premises from the said Ramrao in<\/p>\n
       terms of the consent terms dated 27th April, 1981. Notice of
\n       Motion No.1176\/1982 as also Notice of Motion No.2159\/1982
\n       were disposed of in terms of the consent terms dated 13th July,<\/p>\n
       1982 entered into between the parties to the suit as also said
\n       Ramrao and Ashok Sawant. In clause (2) of the said consent
\n       terms, Applicant No.1 Ramrao handed over symbolic<\/p>\n
       possession of the suit premises and the Court Receiver was
\n       permitted and authorised to adopt legal proceedings against
\n       Ramrao for obtaining actual physical possession from him.\n<\/p>\n
    8. It is the further case of plaintiff that plaintiff and Defendants in<\/p>\n
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\n                                  5<\/span><\/p>\n
    Suit No.9083 of 1969 came to know about death of Ramrao
\n    and therefore constituted attorney of the plaintiff in Suit No.<\/p>\n
    9083 of 1969 addressed a letter dated 16th February, 1994 to
\n    the Court Receiver (plaintiff herein) and requested the later to<\/p>\n
    make enquiries about physical possession of the suit premises.
\n    Pursuant to this letter, the constituted attorney of the plaintiff<\/p>\n
    in Suit No.9083 of 1969, Mr.Prashant Joshi, one of the officers
\n    of plaintiff herein, visited the suit premises on 8th October,
\n    1996 and found Defendant No.3- A.M.Shetty                     and his<\/p>\n
    employees in possession and they were using the suit premises<\/p>\n
    for manufacture of Agarbattis. Said officer prepared report
\n    dated 8th October, 1996. During the visit of the officer it was<\/p>\n
    revealed that the said Ramrao expired on 5th February, 1986.
\n    Plaintiff therefore   convened meeting in it’s office on 9th<\/p>\n
    December,     1996    and    called   upon      Defendant          No.1<\/p>\n
    Smt.Girijabai and original Defendant No.2 Mr.Ambadas to
\n    quit, vacate the hand over vacant possession. Smt.Girijabai
\n    and Mr.Ambadas took out the Chamber Summons No.54 of<\/p>\n
    1996 in Suit No.9083 of 1969 for substitution of their names in
\n    place of original applicant Ramrao Kaikini. On 12th March,
\n    1997 order was passed in the said Chamber Summons<\/p>\n
    directing the Court Receiver to visit the suit premises to find
\n    out as to who is in actual possession. The officer of the Court
\n    Receiver visited the premises on 12th March, 1997 at 4.30
\n    p.m.and submitted report dated 13th March, 1997. Chamber<\/p>\n
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\n                                     6<\/span><\/p>\n
       summons was dismissed on 20th March, 1997 and the learned
\n       Judge of the City Civil Court directed the plaintiff herein to<\/p>\n
       institute suit against the persons found in possession of the suit
\n       premises on or before 13th April, 1997.\n<\/p>\n
    9. Plaintiff further asserted that Defendant No.1 – Smt.Girijabai
\n       and original Defendant No.2 Mr.Ambadas took out Notice of<\/p>\n
       Motion No.2622 of 1998 in Suit No.9083 of 1969 for
\n       transferring tenancy rights of the premises in favour of
\n       Appellants-Defendants Nos.1 and 2. Plaintiff further submitted<\/p>\n
       that, as such the Defendants are tresspassers, and as the<\/p>\n
       tresspass is a continuing wrong, suit is not barred by law of
\n       limitation. On these among other assertions, plaintiff instituted<\/p>\n
       the suit.\n<\/p>\n
    10.The Defendants filed written statement interalia contending<\/p>\n
       that they are tenants of the suit premises and therefore City<\/p>\n
       Civil Court has no jurisdiction to entertain and try the suit, and
\n       only the rent court will have jurisdiction to decide the issues
\n       involved in the suit. It was further contended that plaintiff has<\/p>\n
       not impleaded all the necessary parties to the suit and
\n       consequently suit is liable to be dismissed for non-joinder of
\n       necessary parties. Defendants contended that the suit is also<\/p>\n
       barred by limitation. Under the consent terms dated 27th April,
\n       1981, Court directed the Court Receiver to take appropriate
\n       action for recovery of possession, however, present suit was
\n       instituted on 11th January, 2000 and consequently the same<\/p>\n
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\n                                   7<\/span><\/p>\n
      suffers from gross delay and latches. Defendants also
\n      submitted that Defendant No.1 Girijabai instituted RAD Suit<\/p>\n
      No.806 of 2000 in the Court of Small Causes at Bombay for
\n      declaration that she and Ambadas are the tenants of the suit<\/p>\n
      premises and consequently they cannot be evicted therefrom,
\n      otherwise than due process of law.     It was further contended<\/p>\n
      that the Notice of Motion No.1176 of 1982 and Notice of
\n      Motion No.2159 of 1982 were disposed of by consent terms
\n      dated 13th July, 1982.      The consent terms provided that<\/p>\n
      Ramrao handed over symbolic possession of the suit premises<\/p>\n
      to the Court Receiver and the Court Receiver was authorised
\n      to adopt legal proceedings for obtaining actual physical<\/p>\n
      possession form Ramrao. Even from that time onwards, no
\n      action was taken and the present suit instituted on 11th<\/p>\n
      January, 2000 suffers from gross delay and latches.\n<\/p>\n
    11.Defendants further submitted that at any rate on 20th March,
\n      1997 the Court directed plaintiff to institute suit on or before
\n      13th April, 1997. Pursuant to that direction, no suit was<\/p>\n
      instituted within the stipulated time and even otherwise suit
\n      suffers from gross delay and latches. It was also submitted that
\n      the plaintiff is claiming mesne profits and\/or compensation<\/p>\n
      from the Defendants @ Rs.3000\/- p.m.from the date of filing
\n      of the suit and therefore, the City Civil Court will have no
\n      pecuniary jurisdiction to entertain and try the suit as suit will
\n      have to be valued on the basis of 150 times of the monthly<\/p>\n
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\n                                    8<\/span><\/p>\n
       compensation. On these among other grounds, the Defendants
\n       resisted the suit.\n<\/p>\n
    12.On the basis of rival pleadings of the parties, the learned Trial
\n       Judge framed necessary issues. Plaintiff examined Mr.Ajay<\/p>\n
       Yashwant Melekar, constituted attorney of the plaintiff as PW1
\n       and the Defendants examined Defendant No.2 Mr.Ajit<\/p>\n
       M.Shetty. Both the parties produced documents in support of
\n       their case.\n<\/p>\n
    13.Considering the evidence on record, by the judgment and<\/p>\n
       decree the trial Court decreed the suit in terms of prayer clause<\/p>\n
       (a) of the plaint and declared that the Defendants are
\n       tresspassers qua the suit premises and they were further<\/p>\n
       directed to quit, vacate and hand over vacant and peaceful
\n       possession of the suit premises in favour of the plaintiff for<\/p>\n
       implementation of the orders passed by this Court.\n<\/p>\n
    14.By order dated 13th July, 2010 Record & Proceedings of the
\n       case was called for. Learned counsel for plaintiff also filed
\n       compilation of relevant documents. With the assistance of<\/p>\n
       learned counsel appearing for the parties I have gone through
\n       the record and proceedings of the case.\n<\/p>\n
    15.In support of this appeal, I have heard Mr.K.K.V.Kurup,<\/p>\n
       learned counsel for the Defendants and Mr.Y.S.Bhate, learned
\n       counsel for the plaintiff at length. Mr.Kurup, learned counsel
\n       for Defendants raised the following contentions:
\n       (1)   City Civil Court, Mumbai has no jurisdiction to entertain<\/p>\n
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\n                                     9<\/span><\/p>\n
       and try the suit. Defendants are the tenants of the suit premises
\n       and are not the tresspassers. If that be so, only the rent court<\/p>\n
       will have jurisdiction to decide the issues involved in the suit.
\n       (2)   Even otherwise, the City Civil Court, Mumbai will have<\/p>\n
       no pecuniary jurisdiction to entertain and try the suit. Plaintiff
\n       has claimed compensation @ Rs.3000\/- p.m and consequently,<\/p>\n
       plaintiff will have to value the suit for possession on the basis
\n       of 150 times of the monthly compensation.\n<\/p>\n
       (3)   Under order dated 27th April, 1981, the Court Receiver,<\/p>\n
       High Court, Bombay was directed to institute the suit for<\/p>\n
       obtaining possession of the suit premises and the present suit is
\n       instituted on 11th January, 2000. Suit therefore clearly suffers<\/p>\n
       from gross delay and latches and is liable to be dismissed.\n<\/p>\n
    16.On the other hand, Mr.Bhate, learned counsel for the plaintiff<\/p>\n
       supported the impugned judgment and decree. He submits that<\/p>\n
       Defendants are clearly the tresspassers and are not the tenants.
\n       Defendant No.1 had instituted RAD Suit No.806 of 2000 in
\n       the Court of Small Causes at Bombay for a declaration that<\/p>\n
       she and Ambadas are the tenants of the suit premises. Said suit
\n       was dismissed for default and no steps were taken for
\n       restoration of the said suit. He therefore submitted that it is not<\/p>\n
       open to the Defendants now to contend that they are tenants of
\n       the suit premises. He further submitted that the monthly rent
\n       in respect of the Room Nos.3 and 4 is Rs.347\/- and therefore
\n       rate of monthly rent for Room No.4 being the suit premises<\/p>\n
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\n                                   10<\/span><\/p>\n
      would be one half of Rs.347\/- i.e.Rs.173.50 per month. The
\n      suit is for a declaration and possession and is valued at Rs.\n<\/p>\n
      26025\/- i.e.150 times of Rs.173.50. He therefore submitted
\n      that the City Civil Court, Mumbai will have pecuniary<\/p>\n
      jurisdiction as well to entertain and try the suit. He submitted
\n      that the Defendants are tresspassers and the tresspass being a<\/p>\n
      continuing wrong, having regard to Section 22 of the
\n      Limitation Act, 1963, (for short the Act) a fresh period of
\n      limitation begins to run at every moment of time during which<\/p>\n
      the breach continues. He therefore submitted that suit is not<\/p>\n
      barred by limitation. He prayed for dismissal of the appeal.\n<\/p>\n
    17.I have considered the rival submissions made by learned<\/p>\n
      counsel for the parties. With the assistance of learned counsel
\n      for the parties, I have carefully gone through the material on<\/p>\n
      record. Considering the rival contentions raised by the parties,<\/p>\n
      following points arise for my determination:-
\n         (1)      Whether plaintiff proves that Defendants are
\n         tresspassers in the suit premises?\n<\/p>\n
         Answer:-       Affirmative.\n         (2)      Whether plaintiff proves that Defendant No.1\n<\/pre>\n
         Girijabai and original Defendant No.2 Ambadas had<\/p>\n
         illegally inducated Defendants No.3 (now Def.No.2) Ajit
\n         M.Shetty in the suit premises?\n<\/p>\n
         Answer:-       Affirmative.\n         (3)      Whether Defenants prove that the City Civil Court,\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 16:25:27 :::<\/span>\n                                   11<\/span>\n\n<\/pre>\n
          Mumbai has no jurisdiction to entertain and try the suit?
\n          Answer:- Negative.\n<\/p>\n
          (4)       Whether Defendants prove that the suit is time
\n          barred?\n<\/p>\n
          Answer:- Negative.\n<\/p>\n
          (5)       Whether Plaintiff is entitled to decree against<\/p>\n
          Defendants as prayed for?\n<\/p>\n
          Answer:-       Affirmative.\n          (6)       What order?\n\n\n\n\n                                       \n          Answer:-       As per the final order.\n                        \n<\/pre>\n
    18.Before I consider the merits of the case, brief reference to the<\/p>\n
       checkered history of the litigation is required to be mentioned.
\n       As indicated earlier, Narayan Shivram Thakur had instituted<\/p>\n
       Suit No.9083\/1969 in the City Civil Court at Bombay against<\/p>\n
       his partners Defendant No.1 Vishwanath Sawant and
\n       Defendant No.2 Vasant Achyut Desai for dissolution of
\n       partnership firm viz. Sunder Printing Press and for<\/p>\n
       consequential reliefs. On 18th December, 1969               upon the
\n       application made by Advocate appearing for said Thakur and
\n       upon reading the affidavit of Thakur affirmed on 17th<\/p>\n
       December, 1969 and upon reading plaint declared on 17th
\n       December, 1969 and also upon hearing learned Advocate for
\n       Mr.Thakur in support thereof, the learned Judge of the City
\n       Civil Court ordered that until hearing & final disposal of the<\/p>\n
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\n                                  12<\/span><\/p>\n
      Notice of Motion, the Court Receiver, High Court, Bombay be
\n      appointed interim receiver for the limited purpose of taking<\/p>\n
      charge of books of accounts among others. Learned Trial
\n      Judge further ordered that in the meantime and until hearing<\/p>\n
      and final disposal of the said Notice of Motion, Defendants
\n      and their servants be restrained from disposing of the assets,<\/p>\n
      books of accounts, documents, vouchers and papers, except in
\n      the ordinary course of business. Thus by order dated 18th
\n      December, 1969 learned trial Judge restrained Defendants<\/p>\n
      being Defendant No.1 Vishwanath Sawant and Defendant No.<\/p>\n
      2 Vasant Achyut Desai from disposing of the assets of the
\n      partnership firm.\n<\/p>\n
    19.By order dated 16th February, 1970 learned Judge of the City
\n      Civil Court, Bombay appointed Court Receiver and the Notice<\/p>\n
      of Motion was made absolute in terms of prayer clauses (a)<\/p>\n
      and (b). Mr.Vasant Achut Desai, Defendant No.2 in S.C.Suit
\n      No.9083\/1969 took out Chamber Summons on 17th
\n      December, 1973 against Plaintiff – Narayan Thakur and<\/p>\n
      Defendant No.1 – Vishwanath Sawant praying for a direction
\n      to the Court Receiver to take possession of the assets, running
\n      business etc. and the tenancy rights of the entire premises of<\/p>\n
      Sunder Printing Press, if necessary by force and assistance of
\n      police authorities. On 29th March, 1974 learned Chamber
\n      Judge, after hearing Advocate for Defendant No.2 (Vasant
\n      Achyut Desai) in support of the Chamber Summons, and the<\/p>\n
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\n                                    13<\/span><\/p>\n
       Advocate for Plaintiff (Mr.Thakur),      as also Advocate for
\n       Defendant No.1 (Vishwanath Sawant), by consent appointed<\/p>\n
       the Court Receiver of the suit partnership. Court Receiver was
\n       directed to make inventory of the assets of the partnership and<\/p>\n
       to appoint Defendant No.1-Vishwanath Sawant as an agent of
\n       the Court Receiver without security on certain terms and<\/p>\n
       conditions.\n<\/p>\n
    20.Parties to the suit No.9083\/1969 entered into the consent terms
\n       on 27th April, 1981. Under clause 4 of the consent terms,<\/p>\n
       Court Receiver, High Court, Bombay was appointed Receiver<\/p>\n
       of all the assets of the suit partnership and also of the tenancy
\n       rights of the premises held by the suit partnership. Court<\/p>\n
       Receiver was directed to take all necessary legal steps to
\n       recovery possession from the persons who may obstruct<\/p>\n
       possession and to file all necessary suit for that purpose.\n<\/p>\n
       Clause 4 of the said consent terms reads as under:-
\n          “By consent Court Receiver, High Court, Bombay, be and
\n          is hereby appointed Receiver of all the assets of the suit
\n          partnership and also of the tenancy rights of the premises<\/p>\n
          held by the suit partnership and also of the business carried
\n          on by the suit partnership at Purshottam Buildijng,
\n          Tribhuvandas Road, Bombay 400 004. The Court Receiver
\n          do act on the certified copy of the Roznama of the order<\/p>\n
          passed herein and to take possession of the suit partnership
\n          business alongwith the premises thereof at Purshottam
\n          Building, Tribhuvandas Road, Bombay 400 004. The court
\n          Receiver do take all necessary legal steps to recover
\n          possession from any person who may obstruct possession
\n          and do file all necessary suits for that purpose.”\n<\/p>\n
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\n                                  14<\/span><\/p>\n
    21.Mr.Ramrao Kaikini claiming to be in possession of the suit<\/p>\n
      premises took out Notice of Motion No.1176\/1982 in Suit No.
\n      9083\/1969 on 13th January, 1982 praying interalia                 for<\/p>\n
      mandatory injunction to the Court Receiver to hand over back
\n      possession of Room No.3 as also for injunction restraining the<\/p>\n
      Court Receiver from taking possession of the suit premises. In
\n      support of this Notice of Motion, Ramrao filed affidavit
\n      contending interalia that he was wrongly dispossessed from<\/p>\n
      Room No.3 and that Defendant No.1 Vishwanath Sawant gave<\/p>\n
      him Room No.3 and suit premises on 11th March, 1972 on
\n      leave & licence basis. He claims to be in exclusive possession<\/p>\n
      of Room No.3 and the suit premises from 11th March, 1972.
\n      This Notice of Motion was opposed by Mr.Ashok V.Sawant,
\n      son of Defendant No.1, by filing affidavit in reply dated 28th<\/p>\n
      June, 1982.\n<\/p>\n
    22.Defendant No.2 in Suit No.9083\/1969 viz. Vasant Achyut
\n      Desai took out Notice of Motion No.2159\/1982 on 26th April,<\/p>\n
      1982 praying for direction to the Court Receiver to take
\n      possession of Room No.4 being suit premises from Ramrao
\n      Kaikini in terms of the decree dated 27th April, 1981 by<\/p>\n
      removing obstruction, if any and by assistance of police, if
\n      required.     In support of this Notice of Motion, Mr.Vasant
\n      Achyut Desai filed affidavit dated 26th April, 1982. Notice of
\n      Motion No.1176\/1982 taken out by Ramrao and the Notice of<\/p>\n
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\n                                     15<\/span><\/p>\n
       Motion No.2159\/1982 taken out by Defendant No.2 Vasant
\n       Achyut Desai were disposed of by consent terms dated 13th<\/p>\n
       July, 1982. Clause 2 of the consent terms reads as under:-
\n          “By consent, the 1st applicant do hand over symbolic<\/p>\n
          possession of Room No.4 at present in his occupation to the
\n          Court Receiver, High Court, Bombay. Court Receiver is
\n          hereby permitted and authorised to adopt legal proceedings<\/p>\n
          against the 1st applicant herein for obtaining actual physical
\n          possession of the said Room No.4 from the 1st applicant.
\n          Till the final disposal of these proceedings the Court
\n          Receiver will not dispossess the 1st applicant so long as he<\/p>\n
          continues to pay a sum of Rs.75\/- p.m on or before the 10th
\n          day of each and every calender month in advance from 1st<\/p>\n
          July, 1982 to the court Receiver without committing any
\n          default.”\n<\/p>\n
       Under clause 2 it provided for Ramrao handing over symbolic
\n       possession of the suit premises at that time in his occupation to
\n       the Court Receiver, Bombay. Court Receiver was permitted<\/p>\n
       and authorised to adopt legal proceedings against him for<\/p>\n
       obtaining actual physical possession of the suit premises.\n<\/p>\n
    23.It is the case of the plaintiff that subsequently the plaintiff and<\/p>\n
       Defendants in Suit No.9083 of 1969 came to know that said
\n       Ramrao had died. Therefore the constituted attorney of
\n       plaintiff, viz.Prashant Joshi addressed a letter dated 16th<\/p>\n
       February, 1994 to the Court Receiver for making inquiries
\n       about the physical possession of the suit premises. Pursuant
\n       thereto, officer of the Court Receiver visited the premises on
\n       8th October, 1996 and inquired about the possession of suit<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                   16<\/span><\/p>\n
      premises. During his visit, it transpired that Appellant No.2
\n      herein Mr.A.M.Shetty and his employees were found in<\/p>\n
      possession. Officer prepared report dated 8th October, 1996.
\n      Pursuant to that, a meeting was convened in the office of<\/p>\n
      Plaintiff on 9th December, 1996 and Smt.Girijabai and
\n      Mr.Ambadas original Defendant No.2 and Mr.Vinay Ambadas<\/p>\n
      claiming to be heirs and legal representatives of Ramrao were
\n      called upon to quit and handover vacant and peaceful
\n      possession of the suit premises.\n<\/p>\n
    24.Smt.Girijabai and Mr.Ambadas took out Chamber Summons<\/p>\n
      No.54 of 1996 in Suit No.9083\/1969 for substituting their
\n      names, which was dismissed on 20th March, 1997 and the<\/p>\n
      plaintiff was directed to institute suit on or before 13th April,
\n      1997. It is the case of the plaintiff that Defendants are the<\/p>\n
      tresspassers and the tresspass being a continuing wrong, suit<\/p>\n
      instituted on 11th January, 2000 is within limitation.\n<\/p>\n
    25.The aforesaid facts are brought on record by PW Mr.Ajay
\n      Yashwant Melekar. He was cross-examined by Defendants.\n<\/p>\n
      Mr.Kurup submitted that the said witness has no personal
\n      knowledge and consequently, his evidence cannot be taken
\n      into consideration. I do not find any merit in this submission.\n<\/p>\n
      The witness has produced documents on record, which are in
\n      the nature of proceedings of the Court. He has deposed on the
\n      basis of these documents. The submission that he does not
\n      have personal knowledge, in my opinion, is devoid of any<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                   17<\/span><\/p>\n
      substance.\n<\/p>\n
    26.Defendants examined Ajit M.Shetty. In the affidavit in<\/p>\n
      examination in chief, he stated that original Defendant No.1
\n      Girijabai in the present suit had instituted RAD suit No.806 of<\/p>\n
      2000 in the Court of Small Causes at Bombay for declaration
\n      that she and Ambadas are the tenants of the suit premises.\n<\/p>\n
      Girijabai is real sister of his mother. Ambadas, original
\n      Defendant No.2 died on 1st September, 2000 and his son
\n      Vinay is brought on record. Girijabai expired on 8th August,<\/p>\n
      2003. As such, suit is now against Defendant No.1 Vinay and<\/p>\n
      Defendant No.2 Ajit M.Shetty. He deposed that the present suit
\n      suffers from gross delay and latches and is beyond limitation.\n<\/p>\n
      In the cross-examination, DW Mr.Shetty expressed ignorance
\n      about the orders dated 18th December, 1969 (injunction order)<\/p>\n
      and 16th February, 1970 (order appointing Court Receiver).\n<\/p>\n
      He admitted that Defendant No.1 Vinay has not given power
\n      of attorney to him to appear in this matter. Initially he deposed
\n      that he did not know as to whether said suit was numbered<\/p>\n
      R.A.D. Suit No.806 of 2000. He however admitted that suit
\n      was filed by Girijabai and Ambadas and in that suit he had
\n      filed affidavit to bring heirs and legal representatives of<\/p>\n
      Ambadas on record.     He was not sure as to whether the suit
\n      was dismissed in default. He further deposed that the suit was
\n      dismissed in default. He admitted that he does not have any
\n      document to show that the suit premises was transferred in his<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                  18<\/span><\/p>\n
      favour. He however volunteered that he has rent\/compensation
\n      receipts issued by the Court Receiver.\n<\/p>\n
    27.From the material on record, it is abundantly clear that by
\n      order dated 18th December, 1969 passed in Suit No.9083\/1969<\/p>\n
      learned Judge of the City Civil Court restrained the
\n      Defendants from disposing of the assets. By subsequent order<\/p>\n
      dated 16h February, 1970 the Court Receiver was appointed.
\n      By order dated 29th March, 1974 Court Receiver was directed
\n      to make inventory of the assets of the partnership and<\/p>\n
      Defendant No.1 was appointed as an agent of the Court<\/p>\n
      Receiver, without security. In support of the Notice of Motion,
\n      Ramrao filed affidavit wherein it is his specific case that<\/p>\n
      Defendant No.1 Vishwanath Sawant, put him in possession of
\n      the Room No.3 and the suit premises on 11th March, 1972.\n<\/p>\n
      Thus, Defendant No.1 acted contray to the injunction order<\/p>\n
      dated 18th December, 1969 and inducted Ramrao. As noted
\n      earlier, Defendant No.1 Vishwanath Sawant was appointed as
\n      agent of the Court Receiver and consequently, he could not<\/p>\n
      have inducted Ramrao in the suit premises.            In suit No.
\n      9083\/1969 consent terms dated 27th April, 1981 were filed and
\n      a decree was passed in terms of the consent terms. Under<\/p>\n
      clause 4 of the consent terms, the Court Receiver was
\n      appointed of all the assets of the partnership firm and also of
\n      the tenancy rights of the premises held by the partnership.
\n      Since Defendant No.1 Vishwanath had already inducted<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                   19<\/span><\/p>\n
       Ramrao in the suit premises, Court Receiver was directed to
\n       take all necessary steps to recover possession from any person<\/p>\n
       who may obstruct the possession and to file necessary suit for
\n       that purpose.   Notice of Motion No.1176\/1982 taken out by<\/p>\n
       Ramrao and Notice of Motion No.2159\/1982 taken out by
\n       Defendant No.2 Vasant Achyut Desai were disposed of by<\/p>\n
       consent terms dated 13th July, 1982.Clause 2 thereof provided
\n       that by consent first applicant therein, Ramrao do hand over
\n       symbolic possession of the suit premises at present in his<\/p>\n
       occupation to the Court Receiver, High Court, Bombay. The<\/p>\n
       Court Receiver was permitted and authorised to adopt legal
\n       proceedings against the Ramrao for obtaining actual physical<\/p>\n
       possession of the suit premises.\n<\/p>\n
    28.Mr.Kurup submitted that the suit in the City Civil Court is not<\/p>\n
       maintainable as the Defendants are the tenants of the suit<\/p>\n
       premises. In my opinion, considering the material on record,
\n       the said submission is devoid of any substance. Defendants
\n       cannot claim to be tenants of the suit premises as it has come<\/p>\n
       on record that Ramrao was put in possession of the suit
\n       premises, contrary to the injunction order dated 18th
\n       December, 1969. That apart, RAD Suit No.806 of 2000<\/p>\n
       instituted by Girijabai and Ambadas for declaration of tenancy
\n       in respect of the suit premises was dismissed in default.
\n       Nothing is brought on record to show that the present
\n       Defendants took out any proceedings for restoration of the said<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                    20<\/span><\/p>\n
      suit. In these circumstances, it cannot be said that the
\n      Defendants are tenants. Since Ramrao was put in possession<\/p>\n
      contrary to the injunction order, in my opinion, Defendants are
\n      tresspassers. Mr.Ajit M.Shetty also admitted in the cross-\n<\/p>\n
      examination that he does not have any documents to show that
\n      the suit premises were transferred in his favour. I am therefore<\/p>\n
      clearly of the opinion that the suit instituted in the City Civil
\n      Court, Mumbai against the tresspassers is maintainable.\n<\/p>\n
    29.Mr.Kurup further submitted that at any rate the City Civil<\/p>\n
      Court, Mumbai will have no pecuniary jurisdiction as the<\/p>\n
      plaintiff claimed monthly compensation @ Rs.3000\/-. I am not
\n      impressed by this submission as well. In paragraph No.26 of<\/p>\n
      the plaint, the plaintiff has valued the suit at Rs.26025\/- i.e.150
\n      times of Rs.173.50 (being the monthly rent of Room No.4 –\n<\/p>\n
      suit premises). Considering the valuation made by plaintiff,<\/p>\n
      the City Civil Court, Mumbai           will     undoubtedly have
\n      pecuniary jurisdiction to entertain and try the suit.\n<\/p>\n
    30.Mr.Kurup submitted that at any rate suit is barred by<\/p>\n
      limitation. He submitted that under consent terms dated 27th
\n      April, 1981, the Court Receiver was directed to take steps for
\n      recovering possession by filing necessary suit for that purpose.\n<\/p>\n
      Even thereafter as per the consent terms dated 13th July, 1982
\n      the Court Receiver was permitted to adopt legal proceedings
\n      against Ramrao for obtaining actual physical possession. That
\n      apart by order dated 20th March, 1997 learned Judge directed<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                   21<\/span><\/p>\n
      plaintiff to instituted suit on or before 13th April, 1997. Even
\n      by that time, suit was not instituted and the present suit is<\/p>\n
      instituted on 11th January, 2000 and consequently it suffers
\n      from gross delay and latches, and hence the suit is liable to be<\/p>\n
      dismissed, being barred by limitation. On the other hand
\n      Mr.Bhate relying upon Section 22 of the Act, submitted that<\/p>\n
      Defendants are tresspassers and have no semblance of right,
\n      title and interest in the suit premises. Tresspass, being a
\n      continuing wrong, fresh period of limitation begins to run at<\/p>\n
      every moment of time during which the breach continues. He<\/p>\n
      therefore submitted that the suit is well within limitation.\n<\/p>\n
    31.I have already held that Defendants are tresspassers and they<\/p>\n
      have no semblance of right, title and interest in the suit
\n      premises. Section 22 of the Act reads as under:-\n<\/p>\n
         “In the case of a continuing breach of contract or in the case<\/p>\n
         of a continuing tort, a fresh period of limitation begins to
\n         run at every moment of the time during which the breach or
\n         the tort, as the case may be, continues.”\n<\/p>\n
      Section 2(m) of the Act defines “tort” to mean a civil wrong
\n      which is not exclusively the breach of a contract or the breach
\n      of a trust.     Tresspass upon the immovable property is<\/p>\n
      unwarrantable entry upon the immovable property of another
\n      or any direct and immediate act of interference with the
\n      possession of such property. Tresspass is a wrongful act done
\n      in disturbance of the possession of the property of another or<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                    22<\/span><\/p>\n
      against the person of another against his will. The tresspass
\n      continues so long as unlawful entry lasts.    Thus the right to<\/p>\n
      sue will continue de die in diem till it is removed. The
\n      wrongful acts of Defendants are of such a character that the<\/p>\n
      injury caused by them is continuous. The acts of Defendants
\n      constitute a continuing wrong. Tresspass being a continuing<\/p>\n
      wrong, having regard to section 22 of the Act, in my opinion,
\n      suit is not time barred.\n<\/p>\n
    32.Even otherwise in respect of the suit premises the Court<\/p>\n
      Receiver was appointed. Suit premises
\n                         ig                        are custodia legis.\n<\/p>\n
      Court Receiver is an officer of the Court and acts in
\n      accordance with the directions issued by the Court. It is a<\/p>\n
      settled principle of law that party should not suffer because of
\n      the mistakes committed either by the Court or its officers. The<\/p>\n
      Court Receiver was directed by the Court to institute suit for<\/p>\n
      recovery of possession. By order dated 27th April, 1981 Court
\n      Receiver was further directed to auction the goodwill and
\n      trade-name of the partnership alongwith the benefit of the<\/p>\n
      tenancy rights of the suit business as a going concern among
\n      the parties in Suit No.9083\/1969 and the parties in that suit
\n      were at liberty to bid for the same for themselves only, and<\/p>\n
      not for the benefit of any third party.\n<\/p>\n
    33.Since the Court Receiver was appointed by the Court, the
\n      parties to Suit No.9083\/1969 could not have instituted the suit.
\n      For all these reasons, I do not find any substance in the<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>
\n                                     23<\/span><\/p>\n
       contentions raised by Defendants that suit is time barred.
\n       Considering the facts and circumstances of the case, as also<\/p>\n
       the material on record, I do not find that the learned Trial
\n       Judge has committed any error in decreeing the suit. First<\/p>\n
       appeal is devoid of any substance and is liable to be dismissed.
\n       First appeal is dismissed. In the circumstances of the case,<\/p>\n
       there shall be no order as to costs.\n<\/p>\n
    34.In view of dismissal of the first appeal, Civil Application No.
\n       2799 of 2010 stands disposed of.\n<\/p>\n
    35.After pronouncement of the judgment, Mr.Kurup submitted<\/p>\n
       that the Court Receiver took possession of the suit premises on
\n       30th June, 2010. When the Court Receiver took possession of<\/p>\n
       the suit premises, certain articles of Defendants were lying,
\n       in respect of which inventory was made. Said inventory is<\/p>\n
       jointly signed by plaintiff and Defendants. Mr.Kurup therefore<\/p>\n
       submitted that since these articles are admittedly belonging to
\n       Defendants, plaintiff may be directed to hand-over the same to
\n       Defendants at the earliest. Mr.Bhate submitted that within one<\/p>\n
       week from today these articles will be handed over to
\n       Defendants at the suit premises. Statement is accepted. Order
\n       accordingly.\n<\/p>\n
    36.Parties to act on the authenticated copy of this order.\n<\/p>\n
                                              (R.G.KETKAR, J.)<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:25:27 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vinay vs The Court Receiver on 13 September, 2010 Bench: Rajesh G. Ketkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.704 OF 2010 WITH CIVIL APPLICATION NO.2799 OF 2010 1. Vinay S\/o.Ambadas Kaikini, Male, Indian Inhabitant, Residing at Room No.4, Purshottam Building No.”B”, Purshottam Tribhuvandas […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-234633","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVinay vs The Court Receiver on 13 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vinay-vs-the-court-receiver-on-13-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vinay vs The Court Receiver on 13 September, 2010 - 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