Deciding Authority : Supreme Court
Date of Judgement : 06/01/2000
Bench: S.P. KURDUKAR & SYED SHAH MOHAMMED QUADRI
Facts : Usha Harshadkumar Dalai filed Suit No. 120 of 1978 on the Original side of the Bombay High Court for partition of the said property against Manibhai Jhaverbhai Patel & Ors. seeking partition and possession of her share in the said property. Obviously since it was a suit for partition amongst the co-owners the first respondent, namely, M/s. ORG Systems as well as second respondent Suhrid Geigy Trading Limited were not arrayed as defendants since they were not concerned with the partition of the joint family property. The appellant took out a Notice of Motion No. 115/78 in the said suit for various interim reliefs including the appointment of the Court Receiver. The learned single Judge vide its order dated 13th February, 1978, passed an ad interim order whereby Court Receiver, the Bombay High Court, was appointed as a Receiver of the suit property with a direction to take possession of the suit property and manage the same and do all other incidental things in relation thereto. Admittedly when the Court Receiver came to be appointed the premises in question was found to be in actual possession of Suhrid Geigy Trading Limited and, therefore, the Receiver took symbolic possession without disturbing the possession of Suhrid Geigy Trading Limited. The ad interim order was confirmed by the learned single Judge on July 24, 1978.
On September 7,1970 (prior to suit) a Leave and License Agreement between the co-owners of a building called Shreeniketan Building was entered into with Suhrid Geigy Trading Limited whereby the said Suhrid Geigy Trading Limited was permitted to occupy the premises in question ad measuring 4850 square feet on terms and conditions set out therein. Before the expiry of the licence period of five years on 1st February,1973, an amendment in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) was introduced whereby all subsisting licensees became protected tenants and were governed by the provisions of the Bombay Rent Act. Section 15(1) of the Bombay Rent Act provides that subject to any contract to the contrary it shall not be lawful for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner. The Bombay Rent Act provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein. The Leave and Licence Agreement came to be terminated on September 7, 1975 and the occupation of the said premises by Suhrid Geigy Trading Limited was governed by the provisions of the Bombay Rent Act. Some of the co-owners took out Ch/S No. 436 of 1996 on 17th April, 1996, bringing to the notice of the High Court that when the Court Receiver took symbolic possession the Suhrid Geigy Trading Ltd. was in occupation but now the said premises are being occupied by the first respondent ORG Systems. The applicants in the said Ch/S sought appropriate orders from the court directing the Court Receiver to submit a report to the High Court and recover possession of the said premises from the first respondent ORG Systems. The High Court while passing the order directed the Court Receiver to submit a report relating to the use, occupation and possession of the premises in question. Before the expiry of the license period of five years on 1st February, 1973, an amendment in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) was introduced whereby all subsisting licensees became protected tenants and were governed by the provisions of the Bombay Rent Act. Section 15(1) of the Bombay Rent Act provides that subject to any contract to the contrary it shall not be lawful for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner. The Bombay Rent Act provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein. The Leave and Licence Agreement came to be terminated on September 7, 1975 and the occupation of the said premises by Suhrid Geigy TradingLimited was governed by the provisions of the Bombay Rent Act.
Judgement : It is well settled principle that when a Court Receiver is appointed in respect of any property it is said to be in custodian legs and court holds the property for the benefit of the true owner. The Court Receiver acts on behalf of the court. Even the court receiver will have no power to deal with such property without the leave of the court. It is the duty of the Court Receiver to maintain the status quo and also to protect the property from being put to waste or allow it to diminish its value. The Court Receiver cannot encumber the property in any manner without the leave of the court. It is the obligation of the Court as well as the Court Receiver to preserve and maintain the property as far as possible and practicable in the same form when it was taken in possession. If these principles are borne in mind, in our view, it is quite clear that when the possession of the property was taken by the Court Receiver in 1978, Suhrid Geigy Trading Limited was in occupation and the Court Receiver took symbolic possession thereof. It must be presumed that Suhrid Geigy Trad-ing Limited was very much aware of the appointment of the Court Receiver. In Anthony C. Leo’s case admittedly the tenant was in occupation of the premises before the Court Receiver took symbolic possession. The tenant had committed certain breaches and had resorted to unauthorised and illegal activity prior to the filing of the civil suit. The landlord who had a cause of action under the Bombay Rent Act did not file any proceedings under the said Act for necessary reliefs before the appropriate forum. The landlord filed a suit on the original side of the Bombay High Court and got the Receiver appointed for the suit property. In that suit the landlord took out a Ch/S to evict the tenant on the ground that he has committed breach of lease agreement inasmuch it carried out construction of lofts and put up two stand-type boxes on the outer wall for storage of gas cylinders and air-conditioning units. In the Ch/S it was prayed that the CourtReceiver be directed to remove the said lofts and the said box-type stands.
The High Court granted the relief to the landlord in the said Ch/S and it was against this order the tenant had filed the appeal in Court, Therefore, the admitted position that flows from Anthony C. Leo’s case is that the landlord had a cause of action before the filing of the civil suit in the High Court to initiate proceedings for appropriate reliefs under the Bombay Rent Act in the competent court but he did not do so. When the Receiver came to be appointed in the suit filed by the landlord on the original side obviously he could not have better rights to enforce the cause of action accrued under the Bombay Rent Act. The above observations in our opinion is the ratio of the judgment in Anthony C. Leo case and it would not be correct to read the said judgment to mean that if the trespasser or any person who obtains the possession after the Receiver took over symbolic possession or actual possession of the property and if such person pleads that he is a tenant the only remedy for the Court Receiver is to approach the Rent court under the Bombay Rent Act. The judges however made it clear that they do not intend to lay down a broad proposition, that in every case the Receiver can resort to the summary proceeding of this nature. The question would have to be decided by the Court with reference to the pleadings of the parties and the proof thereof.
Held : Appeal Allowed .
Tejasv Anand , IV th year , AMITY LAW SCHOOL, DELHI.
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