Bombay High Court
Royal Western India Turf Club Ltd vs B. J. R. And Iqbal Singh And 2 Ors ... on 8 October, 2018
Author: G.S. Patel
Bench: G.S. Patel
10-CHSCDL1467-18.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
CHAMBER SUMMONS (L) NO. 1467 OF 2018
IN
EXECUTION APPLICATION (L) NO. 624 OF 2018
Royal Western India Turf Club Ltd ...Applicant/
Claimant
Versus
B.J.R.'s & Ors ...Respondents/
Judgment Debtors Mr Dinyar Madon, Senior Advocate, with Mr Aditya Shiralkar, Mr Vivek Shiralkar & Ms Yashoda Desai, i/b M/s Shiralkar & Company, for the Claimant.
Mr DV Sawant, for the Respondents (appearance not properly given).
CORAM: G.S. PATEL, J
DATED: 8th October 2018
PC:-
1. This is a Chamber Summons in Execution. The Award Holder is the Royal Western India Turf Club Ltd ("the Turf Club"). It obtained two awards against Respondent No. 1, a partnership firm that operates a restaurant known as 'Gallops' in the Turf Club's premises. The details of the claim and the defence are Page 1 of 5 8th October 2018 ::: Uploaded on - 09/10/2018 ::: Downloaded on - 10/10/2018 01:21:52 ::: 10-CHSCDL1467-18.DOC unimportant at this stage. There were two awards. The first, of 25th September 2017, was a money award against the Respondent-firm in the amount of approximately Rs.52.81 crores. A second award, passed shortly thereafter, on 17th January 2018 ordered the eviction of the Respondent from the premises in which it runs the Gallops restaurant. The Respondent filed a Petition under Section 34 of the Arbitration and Conciliation Act 1996 ("Arbitration Act") assailing both awards. On its application for stay of execution of the money award, RD Dhanuka J by his order of 25th April 2018 granted the stay conditionally upon the Respondent depositing 50% of the amount awarded An Appeal was filed but later withdrawn with leave to file a Special Leave Petition. On 17th August 2018, the Supreme Court reduced the deposit required, as a condition precedent for stay of execution of money award, to Rs.18 crores to be deposited within six weeks from that date.
2. Nothing has been deposited. Hence the present application.
3. Prayers (a) and (b) of the Chamber Summons seek disclosures of movable and immovable assets, income tax returns and so on. Respondents Nos. 2 to 4 to the Chamber Summons and to the Execution Application are partners of the Judgment Debtor firm and prayer (b) seeks an order of disclosure against them also.
4. Mr Sawant for all the Respondents states on instructions that the Judgment Debtor and Respondents No. 2 to 4 will file their respective Affidavits of Disclosure complete in all respects by 29th October 2018. I making it clear, on the submission of Mr Madon, Page 2 of 5 8th October 2018 ::: Uploaded on - 09/10/2018 ::: Downloaded on - 10/10/2018 01:21:52 ::: 10-CHSCDL1467-18.DOC that I will require also a disclosure of all assets transferred pendente lite to any other partnership firm, HUF or other entity by any of the Respondents. The reason for this is Mr Madon's submission that there is material to indicate that in anticipation of a decree being passed against the Respondent-firm, its partners diverted valuable assets at least to an HUF and possibly to other entities as well. Two documents are already annexed to the Affidavit in Support of the present Chamber Summons. These contentions are presently kept open for determination at a later date.
5. Prayer (e) seeks an injunction in broad terms and I am inclined to grant that relief having regard to the brief history set out above. There will be an ad interim order in terms of prayer clause
(e).
6. In addition I am making it clear that the Respondent-firm is allowed to use its bank account with the Union Bank of India, Mahalaxmi Branch, only in the ordinary and usual course of business and the Respondent-firm will not make any non-routine transfers or withdrawals from this account. Mr Sawant makes a statement on instructions that complete accounts of the operation of the Gallops restaurant will be filed by the 1st Respondent-firm on a weekly basis. I will require that statement to be filed and served fortnightly for the present.
7. Mr Madon makes a submission finally for the appointment of a Receiver. He submits that the question of royalty and security, if any, can be differed to a later date but the business must be made Page 3 of 5 8th October 2018 ::: Uploaded on - 09/10/2018 ::: Downloaded on - 10/10/2018 01:21:52 ::: 10-CHSCDL1467-18.DOC custodia legis. There is also a prayer for appointment of Receiver of an immovable property which is the 1st Respondent's office at the Sussex Industrial Estate Premise Cooperative Society, Dadoji Konddev Cross Lane, Byculla (East), Mumbai 400 027.
8. Since the eviction award has been stayed in the proceedings under Section 34 it will not be possible to appoint the Receiver of the premises occupied by the Respondent-firm and from which it is running the Gallops restaurant business. Consequently the Receiver is appointed of the business of the Judgment Debtor i.e. the Gallops restaurant business. In the facts and circumstances of the case, the Receiver will be in symbolic possession of that business. In the facts and circumstances of the case there will be no question of affixing a board to any part of the premises as this is only likely to be misunderstood at a later date and is apt to cause confusion between receivership of the property and receivership of the business.
9. I am not inclined at the ad-interim stage to appoint a Receiver of the Sussex Industrial Estate Premise CHS. I will accept Mr Sawant's statement on instructions that none of the Respondents will alienate, part with possession, create any third party rights or allow any encumbrances to be created over either in Gallops restaurant premises or the office premises at the Sussex Industrial Estate Premise CHS.
10. All contentions are left open including in particular the question of royalty and security, if any, in respect of Gallops restaurant business being run by the Respondents.
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11. Mr Madon states that he is separately applying to the appropriate Court to have the stay of eviction from the premises vacated. All contentions are left open and obviously cannot be agitated in these proceedings.
12. List the Chamber Summons on supplementary board on 31st October 2018.
(G. S. PATEL, J) Page 5 of 5 8th October 2018 ::: Uploaded on - 09/10/2018 ::: Downloaded on - 10/10/2018 01:21:52 :::