Madras High Court
D.S. Reddy Rep. By His Power Agent, ... vs Dr. G.V. Reddy, Rep. By His Power Agent ... on 3 November, 1998
Equivalent citations: 1999(1)CTC172
ORDER
1. The first respondent/plaintiff filed the suit in O.S.No.5849 of 1997 on the file of the VIII Assistant City Civil Court, Madras seeking a decree (i) for declaration that he is the sole licensee of the Locker bearing No.687 in class 'H' of the vault of the first defendant; (ii) for a permanent injunction restraining the defendants from in any manner operating the said Locker and (iii) for a mandatory injunction directing the first defendant to break open the said Locker in the presence of the Power Agent of the plaintiff and hand over all documents and valuables available in the Locker to the plaintiff's power agent. The said suit was defended by the petitioner/second defendant.
2. Pending suit, at the instance of the first respondent, an order of injunction was passed against the second defendant/petitioner from operating the said Locker, which is still in force.
3. Thereafter the first respondent/plaintiff came forward with the present application in I.A.No.8973 of 1998 to open the petition mentioned locker in the presence of the petitioner and the representatives of the first respondent therein and prepare an inventory of the contents of the locker or alternatively to appoint an advocate-commissioner to break open the said locker and prepare an inventory of the contents of the said locker, and file the same before the court below. The said application was objected to by the petitioner herein by filing a counter.
4. The Court below accepting the case of the first respondent directed to open the locker in the presence of the petitioner and the representatives of the first respondent therein, and the advocate-Commissioner was directed to take inventory of the contents of the locker. It has also given directions to the advocate commissioner regarding the inventory and also given liberty to the advocate-commissioner to break open the locker, if the petitioner is not co-operating. Aggrieved against the same, the petitioner has filed the above Revision.
5. The plaintiff is the son-in-law of the petitioner Second defendant. The marital relationship between the plaintiff and his wife had broken down due to some mis-understanding between the parties. It is the case of the plaintiff that the locker in question was assigned to him and he handed over the key and authorised the petitioner/second defendant to operate the same in his absence. But it is specifically admitted in the plaint that the plaintiff and the petitioner/second defendant had signed and the second defendant is also a co-licensee. It is the case of the plaintiff/first respondent that he is the sole licensee with reference to the locker and the position of the petitioner/second defendant was more or less of a trustee. Since the key was not handed over by the second defendant, the plaintiff filed the present suit. The second defendant contested the suit on the ground that he is also a co-assignee and so the plaintiff cannot claim absolute right. Admittedly, the second defendant/petitioner now cannot operate the locker, in view of the order of injunction granted by the court below.
6. In the present application, the plaintiff has come forward with the prayer to direct the petitioner herein to open the locker or in the alternative to appoint an advocate-commissioner to break open the locker. In the affidavit filed in support of the application, in para 8 it is stated that the equity share certificate for 83,897 shares of the company, ('Oriental Hotels Limited' together with other share certificates were deposited in the said locker by the petitioner therein, and the second defendant therein knowing fully well the value of the share certificates belonging to the petitioner therein, unjustly refused the first respondent's possession of the same with intention to harass and cause mental agony to the first respondent. It is the further case of the plaintiff/first respondent that he apprehends a drop in the share price and further monetary loss would be caused to him. On the basis of the above allegations, the first respondent wants to open the locker. He also has prayed for taking inventory of the contents of the locker. But unfortunately no reason whatsoever has been stated in the affidavit as to why such inventory has to be taken, except saying that such inventory is necessary to decide about the future course of action about the huge number of shares which were kept inside the said locker. From the abovesaid pleadings it is clear that the plaintiff/first respondent is only concerned about his shares. According to him, if those shares are not taken out, there is a possibility of drop in the share prices.
7. The learned Senior Counsel appearing for the petitioner has submitted that the shares of the petitioner relating to the Company, Oriental Hotels Limited, as stated by the plaintiff/first respondent, are available in the locker and the petitioner is ready to hand them over to the first respondent, if the Court gives direction to that effect.
8. The plaintiff/first respondent has not come forward with the reasons for taking inventory. An inventory cannot be directed to be taken for mere asking. There must be some foundation with reference to the lis pending before the Court to sustain the petition. The appointment of advocate-commissioner for the purpose of taking inventory can be ordered, only to safeguard the interest of the parties, with reference to the dispute pending. In this case, admittedly, the order of injunction is in force and the petitioner/second defendant cannot operate the locker, and, in the event of succeeding in the suit the plaintiff/first respondent is going to get the key and all the properties available in the locker; if otherwise the petitioner/second defendant establishes his right in the properties available in the locker. It is also not the case of the first respondent that such inventory is necessary to safeguard his right with respect to the properties in the locker. It is also not the case of the first respondent that the petitioner will tamper with the locker. When the petitioner/second respondent is not having any access to the locker, the question of opening the same for the purpose of taking inventory which is only for collateral purpose. It is also not the case of the first respondent that such an inventory is necessary to decide the issue in the suit. Only to decide the issue in question, if such inventory is necessary it can be ordered. In the suit it has to be decided whether the plaintiff/first respondent is the sole licensee or not.
9. The learned Senior Counsel appearing for the plaintiff/first respondent has submitted that even according to the petitioner/second defendant, he is the co-assignee of the locker and so he is also entitled to open the locker along with the petitioner/second defendant. Even if it is so, in view of the pending litigation and in view of the order of injunction against the petitioner/second defendant, it cannot be said that the first respondent also at this stage can be allowed to operate the locker.
10. The specific case of the first respondent/plaintiff, as set out in the affidavit is that the share certificates are in the locker and he apprehends a drop in the share price and the same would cause further hardship. But he never asked to hand over the same by taking them from the locker. In view of the admission made by the petitioner/second defendant that the share certificates of the plaintiff/first respondent are in the locker, in the interest of justice, the petitioner can be directed to handover those share certificates which are in the names of the plaintiff/first respondent and undisputably belonging to the plaintiff.
11. The Court below without even going into the question as to whether the inventory is necessary or not for the purpose of deciding the case, merely because such prayer was sought for, has granted the same. No reason whatsoever was given by the court below in support of its order. An order appointing a Commissioner is a judicial discretionary order and should be supported by reasons so that the proprietary of exercise of discretion becomes visible. So, the order of the court below is set aside, and in modification of the directions given by the court below, the following directions are given:-
(1) The petitioner/second defendant is directed to open the locker in question in the presence of the advocate-commissioner appointed by the court below, and handover the share certificates stand in the name of the first respondent/plaintiff to the Commissioner on or before 20.11.1998, after giving proper notice to the advocate commissioner.
(2) If the petitioner does not do so within the stipulated time, the advocate-commissioner or the first respondent is directed to approach this Court for further direction.
12. With the above observations, this Revision is allowed partly. No costs. Consequently, C.M.P.No.15187 of 1998 is closed.