Bombay High Court
Rajul Manoj Shah vs Navin Umarshi Shah And 9 Others on 14 March, 2019
Author: A.K. Menon
Bench: A.K. Menon
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.436 OF 2019
IN
SUIT NO.203 OF 2014
Rajul Manoj Shah .... Applicant
In the matter between
Rajul Manoj Shah .... Plaintiff
V/s.
Navin Umarshi Shah and Ors. .... Defendants
Mr. Ashish Kamat, with Mr. Kunal Mehta and Ms. Jinal Gogri, I/by
M/s.Negandhi Shah & Himayatullah, for the Applicant.
Mr. R.D. Soni, with Mr. Sayed Shamim and Mr. Murtaza Salaewala, I/by
M/s.Shamim & Co., for Defendant Nos.1 to 3.
Mr. Chetan Shah, with Mr. Tajjas P. Shah, I/by Narayanan & Narayanan, for
Defendant No.4.
Mr. Aaushi Shah, I/by M/s. India Law LLP, for Defendant No.8.
CORAM : A.K. MENON, J.
DATED : 14 th MARCH, 2019.
P.C. :
1. Called for ad-interim reliefs. Heard counsel for both sides.1
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2. Vide this Notice of Motion, the applicant-original plaintiff seeks a disclosure on oath of the list of the tenants of 'Raju Villa' as on the date of filing of the Suit; all the dealings that defendant Nos.1 to 3 ("said defendants") had in respect of the immovable property named as 'Raju Villa', as described in Exhibit-B to the plaint, including transfers and surrenders of tenancies and other alienation in respect of the flats after 13 th February 2014; particular reference being to Flat No.9. The motion is directed only against 1 to 3.
3. The plaintiff also seeks appointment of the Court Receiver, High Court, Bombay as 'Receiver' in respect of the premises 'Raju Villa' and further seeks an injunction, restraining defendant Nos.1 to 3 from, directly or indirectly, alienating, encumbering, disposing of, parting with possession of and transferring or creating any right, title or interest or accepting surrender of tenancy in respect of the flats in 'Raju Villa'.
4. At the outset, it is necessary to mention that, an earlier Notice of Motion, being Notice of Motion No.542 of 2014 (Motion 542), in the above Suit is pending for hearing and final disposal. On 13 th February 2014, when, Motion 542 was moved for the first time, the following order was passed :-
"In the meantime, the parties shall maintain status- quo as of today in respect of the properties set out in Exhibit-BB to the plaint."2
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5. In Motion 542, on 1st February 2018, the learned Single Judge of this Court [Coram : S.C. Gupte, J.] has passed certain orders, inter alia, making provisions for protective reliefs in relation to certain Demat Accounts, Fixed Deposits etc. Motion 542 came to be disposed as against defendant Nos.4, 14 and 15 and was kept pending as against others. A preliminary issue of limitation has also been framed. The order dated 1 st February 2018 was carried in Appeal. The Division Bench, vide an order dated 16 th and 17th October 2018, modified the order dated 1 st February 2018 to the extent of the relief claimed against defendant Nos.4, 14 and 15. Certain directions were passed against defendant Nos.4, 14 and 15 in relation to the Fixed Deposits. Motion 542 also seeks appointment of the Court Receiver and other reliefs in relation to all movable and immovable properties forming part of the estate of late Rasiklal Prabhashankar Sheth, Nandkuvar Rasiklal Sheth and Nandini Hasmukh Sheth. In the present Notice of Motion, reliefs are sought against defendant Nos.1 to 3 all at this ad-interim stage.
6. In the Suit, the plaintiff seeks a declaration that, upon demise of Rasiklal P. Sheth, Nandkuvar R. Sheth and Hasmukh R. Sheth, she is the only heir and legal representative entitled to the estate. Declaration is sought against defendant Nos.1 to 3, inter alia, to the extent that, they have no right, title and interest in the 'Raju Villa' and a permanent injunction is sought restraining alienation, parting with possession of the property. The plaintiff 3 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: also seeks appointment of Court Receiver, High Court, Bombay, in respect of the entire estate, which would include the said 'Raju Villa'. Thus, the reliefs sought in the present Notice of Motion are within the scope of overall set of reliefs sought in the plaint.
7. With this brief overview of the scope of the present Notice of Motion, I will now consider the relevant facts, which led to filing of the present Notice of Motion. In November, 1953, one late Rasiklal P. Sheth acquired right, title and interest in 'Raju Villa'. It is believed that, the building 'Raju Villa' was constructed by him. Tenancy rights were created in about 15 flats on the ground, first and second floors and garage No.2. Rasiklal resided in Flat No.16 on the 3rd floor, with terrace on the 3rd and 4th floors and garage No.1. In 1958, a partial partition is said to have taken place between Rasiklal, and Nandkuvar his wife. The Plaintiff is the daughter of Rasiklal and Nandkuvar. Her only sibling was her brother Hasmukh. Upon demise of Rasiklal in 1966, the Letters of Administration were obtained by Nandkuvar, who also passed away in 1993, leaving behind Hasmukh and plaintiff as the only heirs and legal representatives. It is believed that, between 1992-93, Hasmukh entered into certain agreements with defendant No.2 in respect of 'Raju Villa'; however, those documents are not registered.
8. Between 1995-96, it is believed that, several attempts were made for 4 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: distributing the parties' share in the estate but nothing has been fructified. Hasmukh died in July, 1995 and, thereafter, Nandini, the widow of Hasmukh, obtained the Letters of Administration in relation to the estate of late Hasmukh. Certain other properties also being the subject-matter of this discussion, the parties were negotiating a family arrangement. Since no progress was made and Nandini died intestate on 12 th October 2015, plaintiff filed Testamentary Petition No.1763 of 2013 in this court. The plaintiff thereafter filed the present Suit in February, 2014, seeking administration of estate of late Rasiklal, her brother Hasmukh and sister-in-law Nandini, Motion 542 was filed.
9. Rasiklal Saraiya a tenant in Flat No.9, also passed away in May, 2017 and in June, 2018, apparently, the plaintiff claims to have become aware of the surrender of the tenancy in respect of Flat No.9. The plaintiff has contended that a letter of surrender of tenancy was issued by defendant Nos.1 to 3 to the heirs and legal representatives of the said Rasiklal Saraiya. The daughter of Rasiklal Saraiya has since confirmed that the tenancy has been surrendered. The plaintiff claims to have taken search in the Office of the Sub-Registrar of Tenancy, but there is no document registered on record in relation to the surrender of rights. On behalf of the plaintiff, it is contended that the aforesaid surrender of tenancy is in breach of the status-quo order. It is contended that, the status-quo contemplated would not enable defendant 5 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: Nos.1 to 3 to transfer the tenancy or to accept surrender of tenancy, as aforesaid. It is on this basis, that the present Notice of Motion is being moved.
10. The learned counsel for the plaintiff Mr. Kamat submitted that, the conduct of defendant Nos.1 to 3 is such that appointment of Court Receiver was warranted. He further submitted that, the documents, under which defendant Nos.1 to 3 claimed to have acquired 'Raju Villa', were not registered documents and no right, title or interest passed over to defendant Nos.1 to 3. Therefore, the plaintiff may be the only heir and legal representative entitled to the estate of the deceased persons, all of whom had died intestate. It was necessary to protect the property in all respects and this could be achieved only by virtue of appointment of a Court Receiver, in addition to the injunction sought.
11. Moreover, given the fact that the said defendants have now obtained surrender of tenancy, there is a real apprehension that tenancy in respect of Flat No.9 would be transferred and the tenancies in respect of other flats may also be surrendered to defendant Nos.1 to 3, who are claiming to be the landlords. These flats could also be subject to creation of fresh tenancies. The property 'Raju Villa', according to Mr. Kamat, is of the sole ownership of the plaintiff. Defendant Nos. 1 to 3 are strangers and certainly not claiming under any form of succession. It is submitted that, if the Court Receiver is not 6 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: appointed, there is every likelihood of the property being further alienated, when, in fact, the defendants have no right, title or interest in the property.
12. I may mention here that, in Motion 542, the issue raised under Section 9-A of CPC with regard to limitation is already pending and the applicant therein has filed an affidavit in lieu of examination-in-chief, along with the documents in support thereof. Be that as it may, the developments in relation to the tenanted premises have now caused the parties to move the present Notice of Motion. Mr. Kamat submitted that the reliefs sought in the present Notice of Motion be granted.
13. I may mention that, on 19 th December 2018, when this Notice of Motion was moved for an ad-interim relief, a statement was made by Mr. Soni, on behalf of defendant Nos.1 to 3, that, in effect, till the next date, his clients would not part with possession of the suit premises in question and that statement was accepted. In the meanwhile, this Court has directed that, if any tenant desires to surrender tenancy, defendant No.1 would not accept surrender of tenancy, without the leave of the Court and without giving 72 hours advance notice to the plaintiff. Mr. Soni also made a statement on behalf of defendant Nos.1 to 3 that, possession of Flat No.9 has already been taken by defendant Nos.1 to 3 and although the tenant was allowed to remove his articles, one key of the said premises is still in the possession of the tenant, 7 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: who continues to claim that he is in possession. It is in this background, that the present Notice of Motion needs to be considered.
14. On behalf of defendant Nos.1 to 3, Mr. Soni submitted that, there is no substance in the Notice of Motion inasmuch as this is a second attempt seeking the very same relief sought in Motion 542. He further contended that, the order dated 1st February 2018 was the subject-matter of the Appeal and that the appellate court has disposed all the Notices of Motion and, therefore, on account of merger of the order of the learned Single Judge dated 1 st February 2018 with the order passed by the Division Bench in Appeal on 16 th and 17th October 2018, Motion 542 does not survive and therefore, it is not possible for the plaintiff to seek the same relief in the subsequent Notice of Motion. For this reason, Mr. Soni submitted that the present Notice of Motion is not maintainable. He has relied upon an affidavit-in-reply filed on behalf of defendant Nos.1 to 3, in which it is contended that the preliminary issue of limitation is already framed. The suit according to him is hopelessly barred by limitation. He submitted that, there are no change in the circumstances that justify seeking further ad-interim relief of appointment of Court Receiver. He further submitted that, by accepting surrender of tenancy, the defendants have enhanced the value of the property, since in order to obtain surrender of tenancy, defendants have paid consideration and, therefore, it would not be proper to allege that the defendants have breached the order of status-quo. It 8 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: is submitted that, the order of status-quo did not prevent the said defendants from accepting surrender of tenancy given the fact that the tenants had died, the property is now secured in the hands of the defendants and it would be to the benefit of the parties succeeded.
15. Mr. Soni submitted that the applicant-plaintiff has come to the court only in the year 2014, although the property was acquired in the year 1993. He has relied upon the fact that the tenancies were attorned in favour of the said defendants and this fact is known to the plaintiff. In any event, he submitted that the order of injunction passed on 19 th December 2018 sufficiently protects the interest of the plaintiff. He, therefore, submitted that there is no occasion for the plaintiff to now seek appointment of Court Receiver. As far as the status-quo order is concerned, it is contended that the status-quo has not been altered and Motion 542 is still pending. It is submitted that, the plaintiff was married in June, 1976 and the issue of title was not raised ever since. In fact, the plaintiff had no right in the property and since 1993, it has been in the possession of defendant Nos.1 to 3. Mr. Soni further submitted that, all the submissions made by Mr. Kamat are mainly to cause prejudice and not on the merits.
16. Relying on the affidavit-in-rejoinder, Advocate Mr. Kamat submitted that the status-quo was indeed altered and acceptance of surrender of 9 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: tenancy is certainly breached and the Notice of Motion is not intended to cause any prejudice. He submitted that, these contentions of the defendants are all outside the purview of the pleaded case of the said defendants. It is submitted that the Court Receiver is required to be appointed in view of the defence taken by the defendants that there was no status-quo order that can prevent the sais defendants exercising their rights as landlords of Raju Villa. The defendants are the owners since 1993, although they do not have any registered document in their favour. It is submitted that, the real test was to check the pleadings, which would reveal that the plaintiff has sought the appropriate reliefs. It is submitted that the prayers made in this motion are certainly justified in the light of the fact that the order of status-quo has been altered. It is submitted that the plaintiff suspect that the defendants have been regularly accepting surrender of tenancies and have probably created new one and there is a serious apprehension of misappropriation of the estate. On this basis, learned counsel for the plaintiff reiterated for grating of ad-interim relief.
17. I have heard learned counsel for the parties at length. It is evident that Motion 542 continues to be on the file of this Court. That Notice of Motion contains a prayer for appointment of Court Receiver in respect of all the assets, which includes 'Raju Villa', however, no order appointing a Court Receiver has been passed. Motion 542 now awaits a decision on the issue 10 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: framed under Section 9A. If the plaintiff succeeds on that issue, it is likely that the Suit will be continued and will be heard on merits. In the meanwhile, the issue pertaining to appointment of Court Receiver is still very much alive. The question is ,whether the current state of affairs and the developments that have taken place since the order passed by the Division Bench on 16 th and 17th October 2018 would justify granting of any further ad-interim relief? No doubt, Mr. Soni is correct, when he submits that Motion 542 covers the prayers sought in the present Notice of Motion. However, there are variations in the prayers. The prayers sought in the present Notice of Motion are specifically intended to secure the property, in the light of the further developments and surrender of tenancy and under the apprehension that surrender of tenancies may be created in future.
18. In this light of the matter I am of the view that appointment of the Court Receiver will not be justified, considering the fact that the Suit is filed only in the year 2014 and although Motion 542 is pending, no Court Receiver has been appointed on the substantial challenge to the defendants' claim. In my view appointment of the Court Receiver will not be justified, however, given the fact that the order of status-quo was pending. As rightly pointed out by Mr. Kamat, the concept of the status-quo is being considered by the Hon'ble Supreme Court in the case of Satyabrata Biswas and others Vs. Kalyan Kumar Kisku and others, (1994) 2 SCC 266 , wherein paragraph 18 11 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: observed that "status-quo as of today" could only mean status-quo as on the date of the order and not five years after the order. Relying upon this interpretation, the expression "status-quo" Mr. Kamat submitted would clearly entail that no surrender of tenancies could be accepted.
19. I am clearly of the view that the order of status-quo passed in this matter on 13th February 2014 would clearly prevent the said defendants from accepting surrender of tenancies without the leave of the court. That not having been done, I am inclined to hold in favour of the plaintiff. The status- quo has been altered to some extent; however, as the right of occupancy of Flat No.9 has not been irretrievably lost to the estate, I am of the view that the appointment of a Court Receiver at this stage will not be justified. However, given the conduct of the defendants, I am of the view that it will be necessary to protect the estate by granting an injunction restraining defendant Nos.1 to 3 from directly or indirectly, alienating, encumbering, disposing of, parting with possession of and transferring or creating any right, title or interest or accepting surrender of tenancy or creation of tenancies in respect of the flats in 'Raju Villa'.
20. It is also in the fitness of the things and interest of justice that defendant Nos.1 to 3 disclose on oath the list of the tenants of 'Raju Villa' as on the date of filing of the Suit; all the dealings that defendant Nos.1 and 2 had 12 904-NMS-436-2019.doc ::: Uploaded on - 15/03/2019 ::: Downloaded on - 16/03/2019 02:22:43 ::: in respect of the immovable property named as 'Raju Villa', as described in Exhibit-B to the plaint, including transfers and surrenders of tenancies and other alienation in respect of the flats after 13 th February 2014; particular reference being to Flat No.9.
21. In view of the above, I am unable to accept the contention of Mr. Soni that the first Notice of Motion has been disposed by virtue of the order passed by the Division Bench, since the Notice of Motion is pending disposal as on date. In conclusion, I pass the following order :-
(a) There will be an ad-interim order in terms of prayer clauses (a) and (c).
(b) Rejoinder if any may be filed within four weeks from today.
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