Chamber Summons No. 834 of 2000,Suit No. 2772 of 1990

3rd August, 2000

Petitioner Counsel: Mr. RAVI KADAM with i/b P. K.SHROFF
Respondent Counsel: Mr. P. K. SAMDANI with SALIL SHAH i/b M/s. BHAISHANKAR KANGA & GIRDHARLAL Co.

JUDGMENT

JUDGMENT :- The present Chamber Summons has been taken out on behalf of the plaintiff for two prayers. The first prayer is to allow the plaintiff to amend the plaint as per Schedule of amendment annexed to the Chamber Summons as "A". The plaintiff is seeking to add in the title of the plaint, notice of motion and all other proceedings the name of Narinder Gupta as Plaintiff No.2. He has also prayed for all the necessary consequential amendments in the proceedings. The amendments are of formal nature and there was no serious objection raised on behalf of the defendants. The Chamber Summons is therefore made absolute in terms of prayer clause (b). Amendment to be carried out within four weeks from today.

2. The defendants have seriously contested the second prayer in the Chamber Summons that is the prayer for appointment of a Court Receiver of the suit property described in Exhibit-A to the plaint in the above Suit with all the powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 and also with power to take possession of the portion duly vacated by the Central Warehousing Corporation as described in the affidavit in support of the Chamber Summons.

3. I have heard both the learned Counsel for their respective parties. Both were equally vehement. Shri. Kadam, the learned Counsel for the plaintiff has submitted that inspite of an interim order and injunction passed by this Court the defendants have created third party rights in favour of M/s. Garware Synthetics Ltd. in respect of the factory structure forming part of the suit property more particularly described in Exh. A to the Plaint. He has submitted that the defendants have flouted the order passed by this court by parting with the possession of the factory structure forming part of the suit property on leave and licence basis to M/s. Garware Synthetics Ltd. by entering into a so called leave and licence agreement for definite period of sixty months ending 31st December 2000. Shri Kadam has therefore very strong apprehension that the every part of the suit property subsequently vacated by the Central Warehousing Corporation and handed over by them to the Defendant No.1, the Defendant No.1 are very likely to create third party rights in respect of the said portion of the suit property in breach of the orders passed by this Court. He has therefore prayed for appointment of the Court Receiver for the whole suit property.

4. Shri Samdani, the learned Counsel for the defendants, has on the contrary opposed grant of any such prayers. The learned Counsel has denied that any third party right was created in favour of M/s. Garware Synthetics Ltd. According to him, the leave and licence agreement between the parties did not create any rights in favour of the said M/s. Garware Synthetics Ltd. Shri Samdani argued that the said company was merely given a licence to use the premises whereby no rights in their favour were created. Shri Samdani further argued that the interim order passed by this Court did not cover the structure given to the said company on leave and licence basis. Shri Samdani further submitted that the development rights created in favur of the defendants in the agreement were confined to the open lands and they did not include the structures on the land. The defendants were sold the development rights of all the three properties as far as the open space is concerned and the structures were not included in the transaction. He has also submitted that the agreement for sale between the plaintiff and the Defendant No. 1 did not create any right as contemplated under Section 54 of the Transfer of Property Act. Shri Samdani further pointed out that the plaintiffs are fully protected by the interim order passed by this court injuncting the defendants from creating any third party rights and therefore, there was no question of appointing any Court Receiver for the said property or for the entire property. I do not find much substance in the submissions of Shri Samdani. It is not disputed that the defendants have entered into a leave and licence agreement for 60 months in favour of M/s. Garware Synthetics Ltd. The learned Counsel has fairly produced a copy of the leave and licence agreement. According to me this act on the part of the defendants is in clear breach of the interim order passed by this Court on 5-9-1990 which was subsequently confirmed on 16-6-1995. On 5th July, 1995 though the confirmation order was vacated the ad interim order dated 5-9-1990 was ordered to be continued. The said order is still in force. For ready reference it is reproduced herein below:

"(a) that pending the hearing and final disposal of the suit, the Defendants No. 1 and the Defendants their servants and agents be restrained by an order and injunction of this Hon'ble Court from in any manner [dealing with and/or disposing of or] alienating or encumbering the property situate at Kanjure Marg, Bhandup or parting with possession of the said property or inducting a third party in the said property which is in possession of Defendants No. 1 more particularly described in Exhibit "A" to the Plaint."

The learned Judge (M. G. Chaudhari, J.) was pleased to pass ad interim order on 5-9-1990 in Notice of Motion No. 2399 of 1990 except the bracketed portion. We therefore have to read the order without bracketed portion.It is an admitted position that the said order is still in subsistence and is in force. The main suit is for specific performance of the agreement. I fail to understand how the leave and licence agreement entered into by the defendants with M/s. Garware Synthetics Ltd. is not in breach of the injunction order. It is fully covered by the order restraining them "from alienating or encumbering or parting with the possession of the said property or inducting a third party in the said property." By the aforesaid leave and licence agreement dated 1-1-1999 the defendants have definitely parted with the possession of the property and have definitely inducted a third party in the said property which was in their possession. The defendants have done so in clear breach and violation of the injunction order dated 5-9-1990. The plaintiffs had demanded confirmation of the said fact from the defendants but the defendants avoided to give any reply. Instead of sending any reply they kept quiet. In this back ground the apprehension of the plaintiff is well founded. There is much substance in the submission of Shri Kadam that having realised the harm having been done to them after the leave and licence agreement it would be most likely that they might part with the possession of portion of the suit property vacated by the Central Warehousing Corporation by any so called leave and licence to someone else in the teeth of the injunction order passed by this Court or in any other ungenuine manner. On my query to Shri Samdani, the learned Counsel for the defendants whether they intended to create any third party right in the portion of the property handed over back by the Central Warehousing Corporation he was not prepared to make any statement as it was not necessary in view of the order dated 5.9.1990 which fully protected the plaintiff. It can never be forgotten that even on 1.1.1999 when the leave and licence agreement was entered into by the defendants with M/s. Garware Synthetics Ltd. the very same order was in force and even then the defendants have entered into the said transaction in clear violation of the said order. I am therefore satisfied that the defendants have violated the injunction order dated 5.9.1990 by entering into a leave and licence agreement with Garware Synthetics Ltd. for a specific period of 60 months. I am therefore in agreement with Shri Kadam, the learned counsel for Plaintiff that the defendants might repeat their action even in respect of the Central Warehousing Corporation property.

5. The plaintiff has made out a very strong case for appointment of Court Receiver for the suit property. The Chamber Summons is therefore made absolute in terms of prayer clause (b). The Court Receiver, High Court, Bombay is hereby appointed as Receiver of the Suit property more particularly described in Exh.A to the Plaint in the above Suit with all powers under Order XL Rule 1 of Civil Procedure Code and with power to take over possession of the portion duly vacated by Central Warehousing Corporation as described in the Affidavit in support of the Chamber Summons. Stay of the Order is prayed. Stay is refused. Certified copy of the order is expedited.

6. All concerned parties and Court Receiver High Court, Bombay to act on an ordinary copy of this order duly authenticated by the Associate of this Court.

Order accordingly.