Bombay High Court
Shashipal Shankar And Ors vs Shirin C. Vazifdar And Ors on 27 April, 2023
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2023:BHC-OS:4152
16. IA 1045-22.doc
R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
INTERIM APPLICATION NO. 1045 OF 2022
IN
SUIT NO. 1384 OF 2011
Jeroo Chavda Applicant /
.. (Defendant No. 2)
IN THE MATTER BETWEEN
Shashipal Shankar & Ors. .. Plaintiffs
Versus
Firoza Chavda & Ors. .. Defendants
WITH
INTERIM APPLICATION NO. 1 OF 2020
IN
SUIT NO. 1384 OF 2011
Shashipal Shankar & Anr. Applicants /
.. (Plaintiff Nos. 1 & 2)
IN THE MATTER BETWEEN
Shashipal Shankar & Ors. .. Plaintiffs
Versus
Firoza Chavda & Ors. .. Defendants
WITH
COURT RECEIVER'S REPORT NO. 121 OF 2023
....................
Mr. Nilesh Modi a/w Mr. Parantap Mahadevia i/by Rustamji and
Ginwalla for Plaintiffs
Ms. Ferzana Behramkamdin a/w Ms. Bharti Bhansali i/by FZB &
Associates for Defendant No. 2 - Applicant in IA/1045/2022
Ms. Rekha Rane, 2nd Assistant to Court Receiver
...................
CORAM : MILIND N. JADHAV, J.
DATE : APRIL 27, 2023
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P.C.:
1. Heard Ms. Behramkamdin, learned Advocate for Defendant No. 2, Mr. Modi, learned Advocate for Plaintiffs and the learned Court Receiver.
2. By the present Interim Application No. 1045 of 2022, the Applicant - Defendant No. 2 to the suit seeks a direction from this Court to direct the Court Receiver, High Court, Mumbai to give inspection of the Ajanta Flat to Mr. Nirmal Kapoor and to such other brokers and / or any third party who is interested in purchasing and / or getting offer / purchase in respect of the Ajanta Flat and to take all such steps for sale of the Ajanta Flat by private treaty and / or by public auction at and for the price and consideration fixed by this Court and direct the sale proceeds so realized to be deposited in this Court to the credit of the above suit and invest them as per the extant orders passed by this Court and thereafter disburse the same to the beneficiaries and / or heirs of late Mulk Raj Anand as per the orders of this Court.
3. At the outset, both the learned Advocates have drawn my attention to the order dated 04.09.2020 passed by this Court in Interim Application No. 1 of 2020 in the present suit. In that Interim Application, Applicants - Plaintiffs sought directions to the Court Receiver to open the Ajanta Flat and permit M/s. Buhariwala Logistics 2 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc to inspect the artifacts, sculptures, paintings, books, wall-hangings and other valuable items of the deceased Dr. Mulk Raj Anand, a well known personality, writer, author for the purpose of estimating the amounts of package and transporting the said valuables to Indira Gandhi National Centre of Arts, New Delhi (IGNCA) and also to handover the said articles to M/s. Buhariwala Logistics for transporting the same at the cost and expenses of IGNCA. By the said order, prayer clause (a) was granted by this Court, inter alia, directing the Court Receiver to open the Ajanta flat and permit the packers and mover, M/s. Buhariwala Logistics to inspect the inventory. In so far as the other prayers were concerned, this Court directed the Court Receiver to file a response from IGNCA. Other directions were also passed regarding repairs of the said flat.
4. The Court Receiver thereafter addressed a letter to IGNCA and sought its response. Initially IGNCA requested 2-3 months time to consider the same. However, till date no response has been received from IGNCA. Interim Application No. 1 of 2020 is therefore still pending. Thereafter, Covid crept in and due to lack of manpower on account of Covid, the office of the Court Receiver was unable to take any steps for implementing prayer clause (a) which was granted vide order dated 04.09.2020. It is also submitted by the Applicant that the society dues in respect of the Ajanta flat are mounting and 3 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc outstanding. The last maintenance bill issued by the society was for the month of January 2021 for an agreegate sum of Rs. 37,36,849/- which was unpaid. Copy of the said bill has been forwarded to the Court Receiver. That apart interest is also mounting on the aforesaid outstanding amount of the society charges. Society has also sought opening of the subject flat for carrying out repairs. The time estimate for the repairs is approximately three months.
5. Considering the above position and the fact that Ajanta flat is in possession of the Court Receiver, Defendant No. 2 has now filed this Application seeking sale of the Ajanta flat and apply the money that would be realized on such sale as may be determined by this Court after payment of the outstanding society dues and taxes. Applicant would submit that one of the members staying in the same Ajanta building residing in Flat No. 9-1 is interested in purchasing the said flat and has also addressed a letter / requisition dated 03.02.2021 to the Court Receiver. Copy of the same is appended as Exh. "O" to the Application. It is contended by Applicant - Defendant No. 2 that as per the Ready Reckoner for the year 2020-2021, the value of the Ajanta flat would be Rs. 4,41,35,238/- (approximately). However, it is contended that considering the dilapidated condition of the said flat and the fact that the building stands on the land belonging to Bombay Port Trust, no-objection certificate of Bombay Port Trust would have 4 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc to be obtained for sale and transfer of the said flat in addition to any payment that would be required to be paid to them. In that view of the matter, it is contended that the Ajanta flat be sold by this Court under its direction through the Court Receiver and necessary steps in that direction be taken for sale of the said flat. There is no objection in respect of the application made for sale of the said flat. The Plaintiffs infact consent to the same through Mr. Modi who appears for them. Both the learned Advocates jointly contend that the monies so realized after sale of the Ajanta flat be appropriated towards payment of all outstanding dues, all costs, charges and expenses of the Court Receiver, capital gain tax and any other statutory taxes, dues payable on account of the sale of the subject flat and the balance sale proceeds so realized be deposited in this Court to the credit of the above suit and be directed to be invested and later disburse the monies to the beneficiaries and / or legal heirs of the late Dr. Mulk Raj Anand. It is contended by Applicant - Defendant No. 2 that the Plaintiffs would have no right and entitlement in the estate and more specifically the subject Ajanta flat and it is only in view of the objection raised in paragraph Nos. 34 and 35 of the Interim Application, that the Applicant would be solely entitled as an executor of original Defendant No. 1 to the Ajanta Flat and consequentially the sale proceeds.
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6. Ms. Behramkamdin, learned Advocate appearing for Applicant has consented to the sale of the Ajanta flat so that the amount of the sale proceeds can be utilized to pay for the outstanding balance of the society dues and also the other statutory charges and taxes which are due and payable. In so far as the entitlement to the balance sale proceeds is concerned, she would submit that the same can be decided at a later point of time and the Interim Application in that respect be kept pending.
7. Both the learned Advocates and the learned Court Receiver have drawn my attention to the Court Receiver's report dated 121 of 2023 filed by the Court Receiver seeking directions from this Court in respect of the subject Ajanta flat as to what steps are required to be now taken in view of the dilapidated status of the subject flat and the correspondence exchanged between the parties. The learned Court Receiver has, at the outset, drawn my attention to the latest society bill No. 566 dated 31.03.2023 for the month of March-2023 amounting to Rs. 50,78,683/- alongwith Bill No. 591 dated 01.01.2023 amounting to Rs. 13,96,609/- for structural repair aggregating to Rs. 64,75,292/-. Court Receiver would contend that as on date, an amount of Rs. 64,75,292/- is due and payable to the society and the same is mounting. Court Receiver has confirmed that Defendant Nos. 2 and 3 have also given their consent by email dated 6 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc 12.03.2023 informing Court Receiver that they do not have any objection for sale of the Ajanta flat either by public auction and / or private treaty. In that view of the matter, all parties are ad idem that the Ajanta flat being Flat No. 8-2, Ajanta Ideal Co-op. Housing Society situated at 75, Colaba Road, Mumbai - 400 005 can be sold through the Court Receiver on "as is where is" basis. It is brought to my notice that there is an amount of Rs. 637/- only lying in the suit account with the Court Receiver and considering the above outstanding dues of the society, the Court Receiver is completely handicapped. This is one more reason as to why sale of the subject Ajanta flat requires to be completed with immediate effect. Considering that all parties have consented and in view of the mounting society liabilities, it is directed that the said Ajanta flat as described above be sold by the Court Receiver by taking appropriate steps in accordance with law either by public auction and / or private treaty and necessary report for confirmation be placed before this Court for seeking any further directions, if so required. In the meanwhile, the flat needs to be repaired as sought for by the Society.
8. Next the Court Receiver has sought direction for carrying out repairs in the Ajanta flat to bring it into habitable condition. Considering that the parties have consented for the sale of subject Ajanta flat on an "as is where is" basis, the direction for carrying out 7 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc repairs by the Society can be granted. Court Receiver shall hand over vacant possession of the Ajanta flat to the Society for a period of 3 months to carry out repairs as stated in paragraph No. 18 of the Court Receiver's Report as per the Society's letter dated 10.03.2023.
9. Next Court Receiver has sought direction in respect of the movables i.e. paintings and other artifacts lying in the Ajanta flat before the same can be vacated and sold by the Court Receiver on "as is where is" basis. This issue of movables needs to be addressed first if any repairs are to be undertaken and for completing the sale. In this respect, my attention is drawn to the affidavit-in-reply dated 26.04.2023 filed by Defendant No. 2 to the Court Receiver's report. On reading the said affidavit-in-reply, it is clear that in so far as the sale of the subject flat is concerned, there is no objection from Defendant Nos. 2 to 4. Original Defendant No. 1 was the wife of late Dr. Mulk Raj Anand. She has expired. It is brought to the Court's notice that the Court Receiver had earlier filed four reports, viz; dated 08.02.2019, 26.06.2019, 28.06.2019 and 29.06.2019 and prepared inventories of all furniture, articles, paintings, artifacts and books lying in the Ajanta flat. By order dated 27.06.2019, Defendant No. 2 was allowed to take two items listed in Annexure "A" to the Court Receiver's report dated 27.06.2019 which belonged to Defendant No. 2. According to Defendant No. 2, Plaintiffs and 8 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc Defendant No. 2 have identified the furniture, articles, paintings, artifacts and books belonged to the estate of late Dr. Mulk Raj Anand as below:-
"(a) Item No. 4 of inventory to the Court Receiver's Report dated 08.02.2019;
(b) Item Nos. 1 to 18 of Annexure "B" of the Court Receiver's Report dated 27.06.2019;
(c) Item Nos. 1 to 38 of Annexure "C" of the Court Receiver's Report dated 27.06.2019;
(d) Item Nos. 1 to 23 and 25 to 31 of Annexure "B-2" of the Court Receiver's Report dated 28.06.2019;
(e) Item Nos. 1 to 20 and 25 to 47 of Annexure "B-3" to the Court Receiver's Report dated 28.06.2019.
9.1. Defendant No. 2 and Plaintiffs have also identified the furniture, articles and paintings which belonged to original Defendant No. 1 which are as under:-
"(a) Item Nos. 1 to 3, 5 to 7, 9 and 13 of inventory to the Court Receiver's Report dated 08.02.2019;
(b) Item Nos. 21 to 24 of Annexure "B-3" to the Court Receiver's Report dated 28.06.2019."
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16. IA 1045-22.doc 9.2. Further by order dated 27.06.2019 passed by this Court in Court Receiver's Report No. 115 of 2019, this Court has recorded that item listed in Page No. 27 at Sr. No. 10 two wall hangings / paintings may be taken away by Defendant No. 2 forthwith against a receipt to be furnished to the Court Receiver. Plaintiffs had consented for the same which was also recorded by the Court. The said two wall hangings / paintings have been identified by the parties. Subject to a receipt to be furnished to the Court Receiver, Defendant No. 2 is permitted to take the two wall hangings / paintings as noted and directed by this Court in its order dated 27.06.2019. 9.3. It is submitted that as per the bequest contained in the Will dated 13.07.2019 of late Dr. Mulk Raj Anand, the articles, paintings, artifacts and books described as Artwork in the said Will were to be donated in the following manner viz.:-
" My personal collection consists of books, manuscripts, such as fictional, creative writings, books on Art and Literature etc. Precious Art Books including the MARG set to to be give for sale keeping to Indira Gandhi National Centre for the Arts...... I have collected various Art Works, during my lifetime. I desire that all my private collection to be negotiated by Dolly Sahiar under the advice of Dr. Kapil Vatsyayan, Director, Indira Gandhi National Centre for Art, New Delhi and these be kept in I.G.N.C. New Delhi."
10. Undoubtedly, validity of the said Will dated 13.07.1999 of late Dr. Mulk Raj Anand is the subject matter of the pending Testamentary Suit No. 14 of 2010. However, all parties before me 10 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc today who are parties in the said Testamentary Suit are ad idem that as per the desire and wishes of late Dr. Mulk Raj Anand, the aforementioned items from the movables / inventories be donated to IGNC for being displayed by them in his memory according to his last wishes as desired and set out in his Will dated 13.07.1999. It needs to be noted that IGNCA has not responded to the Court Receiver's letters at all. Though the parties are ad idem that the above articles are required to be moved to IGNCA in accordance with the last wish and desire as set out in the Will dated 13.07.1999, it is not sure whether IGNCA is ready to accept the same or otherwise. Though there is order dated 04.09.2020 directing the Court Receiver to prepare the entire inventory which has been done, the question is whether IGNCA is ready and wiling to accept the same if the same are transported by M/s. Buhariwala Logistics and taken to Delhi. Costs also will have to be borne by IGNCA. Record indicates that one of the parties namely Katie Dubey had by letter dated 06.09.2019 addressed to the Director (Library & Information) of IGNCA informed the said Director that the painting and artifacts of late Dr. Mulk Raj Anand shall be packed and transported to the centre at New Delhi by M/s. Buhariwala Logistics and the cost will have to be incurred and paid by IGNCA to the packers. In response to the said letter, there is an email communication received from the Director to Katie Dubey that IGNCA will be happy to incur the transportation costs subject to the parties 11 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc paying the packers in advance and thereafter raising a bill on IGNCA or if the packers agree to receive payment after delivery. It needs to be mentioned here that the movable estate is an extremely valuable estate and unless the recipient i.e. IGNCA has conveyed its acceptance to accept the said movables at its costs, it will not be prudent to allow the transporter i.e. packers and movers M/s. Buhariwala Logistics to move out the said movables to IGNCA unless confirmed by IGNCA in writing and the packer is also agreeale to transport the same. Considering this position, Court Receiver, High Court, Mumbai is directed to speak to the Director / Chairman of IGNCA at New Delhi once again and give a letter in writing / or by email along with copy of this order and seek appropriate response from IGNCA on the same. If IGNCA is ready and willing to accept the movable items as given in the detailed inventory report as per the last wish of late Dr. Mulk Raj Anand at it costs, then and only then the said movable items be allowed to be transported and moved out of the subject Ajanta flat. The Court Receiver shall open the flat and supervise the loading and transportation of the movables to IGNCA. In the interregnum, if IGNCA does not wish to accept the same, the Court Receiver is directed to make an appropriate report for moving the said packaged items to an alternative place at the costs of the parties for the purpose of safe storage. This is so because until the subject paintings and artifacts are moved out of the subject Ajanta flat, repairs of the flat 12 of 14 ::: Uploaded on - 11/05/2023 ::: Downloaded on - 18/06/2023 21:26:53 :::
16. IA 1045-22.doc cannot be undertaken and even sale proceedings cannot be commenced. Hence, it is directed that in the first instance, all steps as directed above for vacating the subject flat shall be undertaken by the Court Receiver with the aid and assistance of all parties. Society is also directed to cooperate with the Court Receiver to enable the Court Receiver to vacate the subject flat so that the same can be handed over to the Society for carrying out the structural repairs. It is further directed that as soon as the subject flat is vacated, appropriate steps shall be taken by the Court Receiver for sale of the flat as per the directions contained in this order. It is directed that Court Receiver shall take appropriate steps for obtaining appropriate valuation report of the subject Ajanta flat before sale of the said flat. Since both the parties have consented for the sale of subject flat, at the outset both the parties are directed to pay costs to the Court Receiver for obtaining the valuation report from Government empanelled valuer at the rate of 50% each. The costs paid by both the parties shall be finally adjusted from the sale proceeds of the subject flat and returned back to the parties. It is further directed that once the subject Ajanta flat is sold by the Court Receiver and all dues in respect thereof are paid / deposited, Court Receiver shall be at liberty to file an appropriate report for distribution of the balance sale proceeds of the said flat to the parties and copy of such report shall be given to all parties.
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11. With the above directions, both the Interim Applications are disposed. Court Receiver's Report is also disposed. Needless to state that prayer clause (e) of the Court Receiver's Report No. 121 of 2023 regarding cost of the report stands allowed and Plaintiffs are directed to deposit the same with the Court Receiver within a period of four weeks from today.
12. Liberty to apply.
[ MILIND N. JADHAV, J. ]
Amberkar
Digitally signed
by RAVINDRA
RAVINDRA MOHAN
AMBERKAR
MOHAN Date:
AMBERKAR 2023.05.11
17:28:44
+0530
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