Civil Revsion Pplcation No. 452 of 2009. Case: Shree Ram Mills Ltd. (Now known as Shree Ram Urban Infrastructure Limited) A Company registered under the Companies Act, 1956 Vs The Court Receiver, High Court. High Court of Bombay (India)
| Case Number | Civil Revsion Pplcation No. 452 of 2009 |
| Counsel | For Appellant: R.A Thorat a/w Vaibhav Sugdare, Samsher Garud and Uma Vyavaharkar i/b. Khaitan and Jayakar, Advs. and For Respondent: N.V. Walawalkar, Sr. Counsel, i/b. G.S. Godbole, Adv. |
| Judges | J.H. Bhatia, J. |
| Issue | Maharashtra Rent Control Act, 1999; Transfer of Property Act - Sections 106, 106(1), 106(2) and 106(3); Civil Procedure Code (CPC), 1877 - Section 503; Civil Procedure Code (CPC), 1908 - Order 40, Rule 1(1) - Order 40(1) |
| Judgement Date | September 16, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
J.H. Bhatia, J.
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The plaintiff in T.E and R. Suit No.60/63 of 2002 is the Court Receiver appointed by the High Court as such in Suit No.234 of 1987 filed on the Original Side of the High Court. Besides other properties, the plaintiff was also Receiver for the suit property known as "Dev Ashish", situated on Plot No.1 bearing CTS No.755 at Padam Takri, Peddar Road, Mumbai. The defendant, who is a revision applicant before this Court, was a tenant in the suit property. As the defendant is a public limited company with paid-up share capital of Rs.1 crore, it did not have any protection under the Maharashtra Rent Control Act, 1999. In view of this, the plaintiff issued a notice dated 26.7.2001 terminating the tenancy of the defendant with immediate effect and called upon the defendant to vacate the premises and hand over the same and also asked him to pay the mesne profits. As the defendant failed to vacate the premises, the Court Receiver filed the suit for eviction and possession. The suit was decreed and the defendant was directed to hand over vacant possession. The defendant challenged the decree by filing Appeal No. 837/2003. The appeal also came to be dismissed by the impugned judgment and order dated 12.6.2009.
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The learned Counsel for the defendant-revision applicant urged two grounds against the decree. Firstly, according to him, the Court Receiver, who filed the suit in his own name, had not obtained leave of the Court which had appointed him as such, to file eviction suit against the defendant and on this ground itself, the suit is liable to be dismissed. Secondly, the notice was issued on 26.7.2001, requiring the defendant to vacate the premises immediately and thus, the notice was defective in view of the provisions of Sec. 106 of the Transfer of Property Act and on this ground also the suit is liable to be dismissed. On the other hand, the learned Senior Counsel for the plaintiff/respondent contended that the Court Receiver was appointed by this High Court with full powers under Order 40(1)(d) and this power included to sue or be sued and, therefore, the leave to file the suit was inbuilt in the order of his appointment. Therefore, there was no need to seek separate leave for filing the suit for eviction against the defendant. The learned Senior Counsel also contended that in view of the provisions of subsection (3) of Section 106 of T.P. Act, the notice shall not be deemed to be invalid under sub-section (1), if the suit is filed after expiry of the requisite period of notice.
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In support of his contention, about need of special leave for filing the suit, the learned Counsel for the revision-applicant placed reliance upon A.B.Miller, Officiating Receiver of the High Court vs. Ram Ranjan Chakravarti, Indian Decisions, New Series Vol.V 10 Cal. 1016 wherein the Calcutta High Court, in the Judgment dated 8.8.1984, had held that it is an elementary matter that the Receiver of the High Court does not represent the owner of an estate and as he is an officer of the Court, he cannot sue or be sued except with the permission of the Court. The same principle was laid down with more detailed reasons by the Supreme Court in Everest Coal Company (P) Ltd. vs. State of Bihar and Ors. (1978) 1 SCC 12. The Supreme Court observed thus in para 7 and approved the law stated by Mulla.:-
7. Mulla with characteristic clarity, has condensed the whole law correctly:
A receiver cannot sue or be sued except wth the leave of the Court by which he was appointed receiver. A party feeling aggrieved by the conduct of a receiver may seek redress against him in the very suit in which he was appointed receiver, or he may bring a separate suit against the receiver in which case he must obtain the leave of the Court.
There is no statutory provision which requires a party to take the leave of the Court to sue a receiver. The rule has come down to us as a part of the rules of equity, binding upon all Courts of Justice in this country. It is a rule based upon public policy which requires that when the Court has assumed possession of a property in the interest of the litigants before it, the authority of the Court is not to be obstructed by...
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