Bombay High Court
Yashwanti Jaisinghrao Suryavanshi vs Girish Waman Firke And Others on 6 July, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
crr 492-21..doc
Digitally
signed by
LAXMI
LAXMI SUBHASH
SUBHASH SONTAKKE
SONTAKKE Date:
2022.07.12
16:23:43
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
COURT RECEIVER'S REPORT NO.492 OF 2021
IN
SUIT NO.260 OF 2018
Yashwanti Jaisinghrao Suryavanshi ... Plaintiff
Versus
Girish Waman Firke & Ors. ... Defendants
Mr. Piyush Raheja, Advocate i/b. Mr. Jayesh Mestry for the Plaintiff
Mr. Girish Waman Firke, Defendant No.1 is present in person.
Mr. Naushad Engineer, Advocate i/b. Mr. Dushyant Purekar a/w.
Mr. Rajat Dedhia and Mr. Akshay Kadam, Advocates for Defendant
Nos.7(a) to 7(c).
Mr. A. S. Pal a/w. Mr. Gobinda C. Mohanty, Advocates i/b.
Mohanty & Associates for Bhimrao House Tenants
Mr. Mutahhar Khan a/w. Mr. Vishal Mehta, Advocates i/b. M V
Law Partners for Kshitij Co-operative Society Ltd.
nd
Ms. Rekha V. Rane, 2 Assistant to Court Receiver present.
CORAM:- B. P. COLABAWALLA,J.
DATE :- JULY 06, 2022.
P. C.:
1. Prayer clauses (a), (b), (d) (e) and (f) of the Court Laxmi page 1 of 20 crr 492-21..doc Receiver's Report have been disposed off by earlier orders dated 4th January, 2022, 1st April, 2022, 21st April 2022 and 27th April 2022. Today, prayer clauses (c) and (g) are being considered, which read as under:
"(c) Necessary directions may be issued to the tenants of Bhimrao House property for making payments towards property taxes and other applicable taxes including rent to M/s. D. S. Singh & Co., the rent farming contractor, appointed in the matter.
(g) Cost of this report for the sum of Rs.5,000/- may be granted and permitted to be deducted from the funds in the hands of the Court Receiver herein."
2. The Court Receiver in its report has pointed out that the tenants of Bhimrao House are required to be directed to pay outstanding arrears of rent as set out at pages 126 and 127 of the report for which a demand was made by the Court Receiver by his letter dated 13th August 2021. The calculations of arrears by the Court Receiver are as on 10th August 2021.
3. Learned Advocates appearing for the tenants of Bhimrao House, submits that the tenants do not accept the amounts which are claimed by the Court Receiver and according to them, the tenants are only liable to pay basic rent and taxes Laxmi page 2 of 20 crr 492-21..doc and are not liable to pay any other expenses such as building electricity bills, staff salary, staff bonus, staff over-time, etc. which must be borne by the landlord alone. Further, the 4% increase in rent has been calculated on gross rent and the same has to be calculated on basic rent and, therefore, the amount claimed towards 4% hike in rent is also disputed. He further submits that this Hon'ble Court does not have jurisdiction to order and direct the tenants to pay the rent as demanded by the Learned Court Receiver.
4. Learned Advocates appearing for the Plaintiff and Defendant Nos.7(a) to 7(c), point out that all the tenants have been, at least since 2014, paying not only rent, taxes and cess but also proportionate share of the expenses incurred including towards staff salary and bonus of the staff that looks after the said Bhimrao House. They submit that this position is evident from the documents filed by the tenants along with Affidavit in Reply dated 21st March 2022 filed on behalf of tenants and in particular Page Nos. 445, 456, 463 to 469 being the rent receipts and calculations of rent. They further submit that at the Laxmi page 3 of 20 crr 492-21..doc relevant time there was no protest by the tenants in respect of these charges. They also submit that the tenants had in fact, filed an interpleader suit in the year 2018 being Interpleader Suit no 263 of 2018 in Hon'ble Small Causes Court seeking directions for payment of rent and in the interim for deposit of rent in the Hon'ble Small Causes Court. In the said suit as well, there was no pleading that rents which were collected were excessive or contrary to the Agreement between the landlord and the tenants. They further submit that, till date, no proceedings have been filed by the Tenants for fixation of rent. It is submitted that in a Court Receiver's Report, the Tenants cannot seek to alter the monthly amounts that they have been paying. The counsel for the Plaintiff also submitted that in Plaintiffs' Affidavit in Reply dated 23 rd December, 2021, at Exhibit "F" at page no 187, they have annexed a statement of the rent and other charges to be paid by tenants every month from January, 2021 onwards which is based on the average monthly contribution towards all charges, including rent, taxes, cess and other outgoings during the year 2017 to 2018. Therefore, they submit that the Court Receiver be directed to collect arrears Laxmi page 4 of 20 crr 492-21..doc towards rent and other outgoings till date as per the statement annexed at page no 126 & 127 to the Court Receiver's Report and further rent and other outgoings to be collected as per the calculations given in the statement annexed at page 187 of the Plaintiffs affidavit in reply.
5. Per contra, the learned Advocate appearing for the tenants submitted that the since 2014 expenses towards landlord's staffs' salary, bonus, overtime, etc. were paid by the tenants under protest. Prior to 2014, the tenants used to pay basic rent, water benefit tax, education cess, tress cess, general tax, State education cess, sewerage benefit tax, employment guarantee cess, Street tax, repair cess, land revenue tax and water consumption tax only, as is evident from the rent receipts, from 1996 to 2010, annexed to the Tenants Affidavit in Reply dated 21st March 2022. Further, after the demise of Barrister Kalsekar, the tenants started receiving two rent receipts, one from the Plaintiff and other from the Defendant No. 1. Therefore, the said interpleader suit was filed for the limited purpose to assert that the tenants do not claim any interest in Laxmi page 5 of 20 crr 492-21..doc the dispute between the Plaintiff and the Defendants and pending the dispute of the Plaintiff and the Defendants to pay rent in the court. The learned Advocate on instructions submitted that the tenants would be filing Applications for fixation of standard rent in the Small Causes Court. He submitted that till the said Application is decided, the tenants be permitted to pay the basic rent along with the taxes and cess agreed by them. He also points out that the tenants have deposited certain amounts with the Court Receiver pursuant to the report being filed by the Receiver by their Advocate's letter dated 9th March 2022, and submits that credit ought to be given to the tenants for these payments made to the Court Receiver.
6. I have heard in detail the rival submissions. As explained by the learned counsel for the Plaintiff and defendant no 7(a)to(c), the practice seems to have been that in addition to the basic rent, taxes, cess etc, the bills towards staff salaries, staff bonus, building electricity bills, Lift AMC, water charges and other utility bills etc., were proportionately shared between all the tenants and were regularly paid. This can be clearly seen Laxmi page 6 of 20 crr 492-21..doc from the rent receipts of 2014. It is pertinent to note that the said rent receipts are prior to the death of the deceased (Barrister Kalsekar) and prior to the appointment of the Court Receiver. Though the Counsel for the tenants argued that the payments made by the tenants were under protest, he was not able to point out or show that the payments were made under protest other than the averment in paragraph 5 of the Affidavit in reply dated 21st March, 2022 filed in reply to the present Court Receivers Report. Prior to this affidavit, this is absolutely nogthing to indicate that the payments being made by the Tenants were under protest.
7. Therefore, it is clear that the tenants were paying the rent including the outgoings and other charges for a few years and merely because the Court Receiver is appointed, the tenants cannot in the hearing on the Court Receiver's report seek to alter the monthly payments made by them. In addition to the aforesaid, Mr. Engineer is right in pointing out that the tenants had filed the Interpleader Suit before the Hon'ble Small Causes Court as Defendant no.1 contended that he was the landlord and Laxmi page 7 of 20 crr 492-21..doc in the said Interpleader Suit the tenants had never taken up any plea that the rent charged was excessive or that they were making payment of rent under protest.
8. In view of the aforesaid, I am of the clear view that the tenants must pay to the Court Receiver the amounts as demanded and they cannot seek, in the present Court Receiver's Report to try and get the determination of fair and standard rent. It is ofcourse open to the tenants to file appropriate proceedings before appropriate court for fixation of standard rent.
9. In view of the above discussion, the Receiver is directed to recover the rent inclusive of taxes, charges and expenses including staff salary and bonus as per chart annexed at page nos. 126 & 127 to the Report. I am informed that there are there are 15 tenants in respect of 22 premises in Bhimrao House. The details of the rent payable by the tenants including arrears of rent as on the date of this order, the rent payable per month from the date of the order are set out in the chart below:-
Chart Showing Net Dues as of 15th June 2022 for Bhimrao House Tenants Laxmi page 8 of 20 crr 492-21..doc Sr. Flo Fl Name Dues As of Dues Dues for, Total of Total Net Dues to No. or at of 10th for, (Jan-2022 Dues as of Paid as be paid as of N Tenant Aug.2021 (Aug- to May- 15th June of 15th 15th June-
o 2021 to 2022), five (Col 5 + June 2022
Dec- months Col 6 + 2022
2021), based on Col 7)
five Avg
months Monthly
Rent
1 2 3 4 5 6 7 8 9 10
1 1st 1 Dr 76,304/- 12,305/- 3344x5= 1,05,329/- 14,859/ 90,470/-
Nirav 16,720/- -
Panch
matia
2 1st 2 Dr 54,832/- 12,305/- 3769x5= 85,982/- 16,650/ 69,332/-
Milind 18,845/- -
Bhide
3 1st 3 Dr 47,336/- 13,980/- 3766x5= 80,146/- 19,332/ 60,814/-
Milind 18,830/- -
Bhide
4 1st 4 RK 56,480/- 13,330/- 4197x5= 90,795/- 20,088 70,707/-
Desai & 20,985/- /-
Compa
ny
5 1st 5 Dr 55,867/- 13,980/- 4089x5= 90,292/- 19,332/ 70,960/-
Milind 20,445/- -
Bhide
6 1st 6 Dr 54,987/- 13,250/- 3933x5= 87,902/- 18,171/- 69,731/-
Milind 19,665/-
Bhide
7 1st 7 Dr 1,09,423/- 15,490/- 4539x5= 1,47,608/- 19,575/- 1,28,033/-
Laxmi page 9 of 20
crr 492-21..doc
& Nirav 22,695/-
8 Panch
matia
8 1st 9 Dr 89,923/- 13,200/- 3771x5= 1,21,978/- 16,182/- 1,05,796/-
Nirav 18,855/-
Panch
matia
9 1st 10 Dr 89,923/- 13,200/- 3771x5= 1,21,978/- 16,182/- 1,05,796/-
Nirav 18,855/-
Panch
matia
10 1st 11 Sanjay 52,989/- 11,555/- 2613x5= 77,609/- 11,952/- 65,657/-
Rele 13,065/-
11 2nd 12 M. S. 41,678/- 18,970/- 4645x5= 83,873/- 29,880/ 53,993/-
Potdar 23,225/- -
12 2nd 12 G. G. 38,592/- 18,785/- 4488x5= 79,817/- 29,547/ 50,270/-
-A Mayeka 22,440/- -
r
13 2nd 14 G. M. 42,229/- 19,540/- 4777x5= 85,654/- 30,879/ 54,975/-
Shah 23,885/- -
14 3rd 15 H. 67,876/- 19,205/- 4652x5= 1,10,341/- 28,251/ 82,090/-
Goradi 23,260/- -
a
15 3rd 16 H. 38,362/- 18,765/- 4497x5= 79,612/- 29,655/ 49,957/-
Shah 22,485/- -
16 3rd 17 Leela 43,468/- 19,890/- 4887x5= 87,793/- 31,455/ 56,338/-
Vaidya 24,435/- -
17 4th 18 Dr 72,255/- 20,250/ 4934x5= 1,17,175/- 29,970/ 87,205/-
Arvind - 24,670/- -
Shah
18 4th 19 G. B. 39,735/- 18,465/- 4233x5= 79,365/- 29,052/ 50,313/-
Jain 21,165/- -
19 4th 2 C. 73,819/- 18,205/- 4604x5= 1,15,044/- 26,757/ 88,287/-
Laxmi page 10 of 20
crr 492-21..doc
0 Gaikwa 23,020/- -
d
20 5th 21 Atul 42,731/- 19,120/- 4727x5= 85,486/- 30,213/ 55,273/-
Joshi 23,635/- -
21 5th 23 S. Gala 44,144/- 20,145/- 5008x5= 89,329/- 31,932/ 57,397/-
25,040/- -
10. In the said chart, credit has been given for the payments made by the tenants as per their advocates letter dated 9th March 2022. The tenants are directed to clear the arrears of rent and make payment to the Court Receiver within 14 days of the date of this order.
11. It is made clear that the aforesaid payments shall be without prejudice to the rights and contentions of the tenants regarding standard / fair rent to be paid by them to the landlord and to decide standard / fair rent, file such appropriate Applications as they may be advised in a court of competent jurisdiction. The observations made in this Order are prima facie and the Court of competent jurisdiction shall decide the standard rent application, if filed by the tenants, as per law and without being influenced by this Order. The Court Receiver will be bound by the orders, if any, passed in those proceedings. Liberty is Laxmi page 11 of 20 crr 492-21..doc granted to the Plaintiff and Defendant Nos.7(a) to 7(c) to appear in the proceedings, if any, filed by the tenants and defend the said proceedings.
12. The Advocate for the Plaintiff states that in order to explain the average monthly contribution by each tenant towards monthly rent and other outgoings, in the Plaintiff's affidavit in reply dated 23rd December, 2021, at page no 187, has annexed a chart which gives the details of the contribution made by each and every tenant which is for the period September 2017 to October 2018. These payments were made even before the appointment of the Court Receiver. Therefore, the tenants shall continue to make these payments to the Court Receiver.
13. For the reasons as set above, the tenants are also directed to continue to pay the monthly rent and outgoings/expenses with regard to their tenements as per the summary chart which is reproduced below: -
Average Monthly Rent to be collected July 2022 onwards from Bhimrao House Tenants Sr. Floor Flat Name of Tenant Average Monthly Laxmi page 12 of 20 crr 492-21..doc No. No Rent to be collected 1 2 3 4 7 1 1st Floor 1 Dr Nirav Panchmatia 3344 2 1st Floor 2 Dr Milind Bhide 3769 3 1st Floor 3 Dr Milind Bhide 3766 4 1st Floor 4 R K Desai & Company 4197 5 1st Floor 5 Dr Milind Bhide 4089 6 1st Floor 6 Dr Milind Bhide 3933 7 1st Floor 7& Dr Nirav Panchmatia 4539 8 8 1st Floor 9 Dr Nirav Panchmatia 3771 9 1st Floor 10 Dr Nirav Panchmatia 3771 10 1st Floor 11 Sanjay Rele 2613 11 2nd Floor 12 M. S. Potdar 4645 12 2nd Floor 12-A G. G. Mayekar 4488 13 2nd Floor 14 G. M. Shah 4777 14 3rd Floor 15 H. Goradia 4652 15 3rd Floor 16 H. Shah 4497 16 3rd Floor 17 Leela Vaidya 4887 17 4th Floor 18 Dr Arvind Shah 4934 18 4th Floor 19 G. B. Jain 4233 19 4th Floor 20 C. Gaikwad 4604 20 5th Floor 21 Atul Joshi 4727 21 5th Floor 23 S. Gala 5008 [Note: The above monthly rent should be increased by 4% every year in January] Needless to state that the payment shall be made without prejudice to the tenants' rights to file an appropriate Application in a Competent Court for the fixation of standard rent.
14. In case of increase in taxes, cess, charges or expenses including staff salary and staff bonus, upto 5% of the monthly rent amount the Court Receiver would be entitled to proportionately increase the rent of the tenants on a pro-rata basis. If the increase proposed is greater than 5% of that amount, the Court Receiver shall inform the tenants and hear any grievance in that regard. In Laxmi page 13 of 20 crr 492-21..doc case, the tenants refuse to pay the rent as directed above, the Court Receiver is directed to adopt appropriate legal proceedings in the court of competent jurisdiction for eviction of the defaulting tenants and recovering the possession of the premises from the defaulting tenants. Prayer clause (c) is accordingly disposed of.
15. The learned advocate appearing for the tenants also points out that one of the tenants residing on the 4 th floor Flat No.20 of Bhimrao House has addressed a letter to the Court Receiver pointing out there are leakages in the flat for which repair work is required to be carried out by the Court Receiver. The Court Receiver is directed to take appropriate steps in respect of the same and is also permitted to take the assistance of the contractor appointed for carrying out renovations of the flats on the 5 th and 6th floors of Bhimrao House as per the order dated 27 th April 2022.
The Court Receiver shall bear the expenses for repairs of the 4 th floor, Flat No.20 from the Suit account.
16. The learned advocate appearing for the Plaintiff refers to the order dated 20th April 2022 by which this Court had directed sale of Toyota Innova Car as per prayer clause (d) of the Court Laxmi page 14 of 20 crr 492-21..doc Receiver's report. He submits that the Plaintiff has paid the entire consideration for the said car, but she desires that the car be transferred by the Receiver directly to Mr. Dileep Anant Sawant who is her family friend since she is of an advanced age and does not wish to be hassled by the formalities of the transfer. He states that he has received written instructions from his clients for the same. Learned Advocates appearing for the Defendant No.7(a) to 7(c) submits that Defendant Nos.7(a) to 7(c) have no objection if the transfer is permitted. I am not inclined to vary the order dated 20th April 2022 and accordingly, it is directed that the Court Receiver shall transfer the said car to the Plaintiff Smt Yashwanti J Suryavanshi residing at Ritusamhar Bungalow, 99, Hill Road, Bandra (West) Mumbai 400050. The Plaintiff, thereafter, is free to deal with the said car in any manner as she deems fit and proper including by transferring it to Mr. Dileep Sawant.
17. The Learned Advocate appearing on behalf of the Kshitij Cooperative Housing Society Ltd. has submitted that the society has made a claim for arrears of maintenance charges payable in respect of Flat No.42 in the said Society by filing Notice Laxmi page 15 of 20 crr 492-21..doc of Motion No. 1255 of 2019. The Learned Advocate for the society states that there are arrears as on date are Rs.10,37,134/- which also includes simple interest @ 18% p.a. on delayed payments. He further submits that Defendant No. 8 had paid the maintenance charges till October, 2017 by way of payment of Rs 1,77,378. Thereafter, no payment has been made.
18. The learned advocate appearing for the Plaintiff and Defendant Nos.7(a) to 7(c) and Defendant No.1 and Defendant No.6 state that they have no objection if the Court Receiver makes the aforesaid payment of arrears as claimed by the Society from the suit account.
19. Accordingly, the Court Receiver is directed to pay the outstanding maintenance charges of Rs.10,37,134/- to the Society from the funds available with the Court Receiver in the suit account. The Society is directed to henceforth serve the maintenance bills directly on the Court Receiver, which shall also be paid by the Court Receiver from suit account.
20. The learned advocate appearing for the society also Laxmi page 16 of 20 crr 492-21..doc referred to the order dated 27 th April 2022 by which the Court Receiver was permitted to carry our repairs and renovations in Flat No.42 in the Khistij building. He submits that pursuant to the same, the contractor appointed by the Court Receiver has commenced work in the said flat. He requests that the Court Receiver be directed to instruct the Contractor carrying out the renovations in the Kshitij flat to adhere to the following requirements of the society:-
(a) Work be commenced at 10.00 am and stop at 7.00 pm.
(b) No work involving noise be carried out between 2.00 to 4.00 pm.
(c) No materials, tools or equipment required for the renovation work of the flat be transported by using the lifts installed in the building. He clarified that the contractor, the personnel, and workman employed by the contractor will be permitted to use the lifts.
(d) That Rs 25,000/- be paid as a refundable deposit.
(e) The Contractor / Court Receiver will give one day prior notice before carrying out any welding work.
Laxmi page 17 of 20
crr 492-21..doc
21. He submitted that this is the practice followed by the society for renovation works carried out by any member of the Society and creating an exception for Court Receiver would result in similar demands being made by other members.
22. The learned counsel for the Plaintiff and Defendant nos. 7(a) to (c) submitted that the Society should be directed to waive off the requirement of the refundable deposit of Rs. 25000 which is collected by the Society from a member who is carrying out renovations in the said flat, because it is the Hon'ble Court who is carrying out the repairs.
23. Having heard the learned Counsel for the respective parties on these aspects, the Court Receiver is directed to inform the Contractor to adhere to the conditions imposed by the society while carrying out the rennovation work. Considering that the rennovation is being done by and under the supervision of the Court Receiver, it is directed that the said Society shall not insist on the payment of the Refundable Deposit from the Court Receiver.
Laxmi page 18 of 20
crr 492-21..doc
24. The Court Receiver has sought a clarification in respect of the expenses to be incurred for repairs, if any, of Flat No.20 on the 4th floor and for the renovation work of the flats on 5th and 6th floor of Bhimrao House. It is clarified that after the premises on the 5th and 6th floor are let out on Leave and License basis, in the first instance, the license fees which are collected, shall be appropriated by the Court Receiver for recouping the expenditure incurred by Court Receiver for repairs, if any, in Flat No.20 on the 4th floor and for the renovation of the said flats on the 5th and 6th floor in Bhimrao House. After the said amount is recouped, the Court Receiver shall retain 1/3rd of the license fees and the balance 2/3rd of the license fees shall be distributed equally between the Plaintiff on one hand and Defendant Nos.7(a) to 7(c) on the other hand.
25. The Plaintiff and Defendant nos. 7(a) to (c) submitted that some old antique furniture and fixtures may be allowed to be shifted from the 6th Floor flat at Bhimrao House and the rest of the old things which are scrap should be disposed of, so that the flat can be made vacant in order to facilitate it to be given on leave and Laxmi page 19 of 20 crr 492-21..doc licence basis. The Plaintiff and Defendant nos. 7(a) to (c) are allowed to shift the old furniture from 6th Floor Flat at Bhimrao House and can put it to their personal use. The Court Receiver shall identify such furniture that is shifted and make an appropriate inventory of the same.
26. The costs of the Report are quantified at Rs.15,000/-, which will be paid by the Plaintiff and the Defendant Nos.7(a) to 7
(c).
27. The Court Receiver's Report is accordingly disposed of.
28. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Laxmi page 20 of 20