First Appeal No. 386 of 2000,First Appeal No. 387 of 2000

9th November, 2001

Petitioner Counsel: Mr. G. S. GODBOLE , Mr. AVINASH JOGDAND , Mr. Y. S. SHAH,CHITNIS VAITHY & CO.
Respondent Counsel: Ms. P. D. ANKLESARIA , Ms. NIRANJANI SHETTY,Ms. V. S. SAVANT,Mr. D. R. DHURAT

Cases Cited:
Everest Coal Co. Vs. State of Bihar [Para 25,29]
Anthony C. Leo Vs. Nandlal Balkrishnan, AIR 1977 SC 173 [Para 26]
S. P. Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC 853 [Para 27]
Kanhaiyalal Vs. Dr. D. R. Banaji, AIR 1958 SC 725 [Para 28]
Dhananjay Sharma Vs. State of Haryana, (1995) 3 SCC 757 [Para 30]

JUDGMENT

JUDGMENT :- The present proceedings are initiated on the report of the Court Commissioner dated 7th September, 2001, whereby; it was brought to the notice of this Court that, subsequent to the order dated 19th April, 2001 most of the defendants, without prior permission of the Court Receiver and/or of this Court, have made their forcible entry in the flats located in the suit buildings, by breaking open the old locks and putting their own locks on the respective flats, in respect of which right, title and interest is being claimed by them.

BACKGROUND FACTS

2. Brief narration of the facts leading to appointment of Court Receiver will be useful for correct appreciation of the facts and contentions of rival parties.

3. The unsuccessful plaintiff is the appellant in First Appeal No. 386 of 1992. The original defendant Nos. 1, 2, 4 to 7, 10, 11, 15 to 19, 23 to 24, 26 to 30 and 33 to 36 are the appellants in First Appeal No. 387 of 2001. The original defendant Nos. 8, 14, 17 and 22 have not preferred any appeal, as such, they are shown as respondent Nos.9, 2, 8 and 10 respectively, in the appeal filed by the original defendants, as such for the sake of clarity all these original defendants are hereinafter referred to as 'Contesting defendants'. Wherever necessary parties shall be referred to as arrayed in the original suit being S.C. Suit No. 442 of 1992, the judgment and decree of which has given rise to the above appeals.

4. The plaintiff had filed a suit in the Bombay City Civil Court at Bombay seeking relief against defendant Nos. 1 to 38 that they be restrained by a permanent injunction from in any manner disturbing the plaintiff's exclusive use, occupation, possession and enjoyment of the suit land viz. land bearing Survey No. 15, Hissa No. 1(P), C.T.S. No. 124, 124/1 to 124/3, 120/3 and 1231 of village Eksar being original Plot No. 178 of the Town Planning Scheme Borivali (Final) admeasuring about 2044 sq.yds. equivalent to 1709 sq.meters situated at Borivali, Gaothan Road, Babhai Naka, Thakurwadi, Borivli (W), Mumbai - 400 092 (hereinafter referred to as 'suit land/property' for short).

Plaintiff's Case :

5. The case of the plaintiff before the trial Court was that one Smt. Parvati Shankarrao Thakur and three others were the owners of the above immovable property. By an agreement dated 18th November, 1980, the said Smt. Parvatibai Thakur and others agreed to sell this property to the defendant No.39, M/s. Sainath Enterprises, a partnership firm having its registered address at 27-29, Dr. V. B. Gandhi Marg, first floor, Forbes Street, Mumbai-400 023; on the terms and conditions recorded in the said agreement. In pursuance of the said agreement dated 18th November, 1980, the defendant No. 39 was put in possession of the same in part performance of the said agreement. Since the partners of the defendant No. 39, firm were known to the plaintiff, he, in pursuance of the brief negotiations agreed to purchase the suit land by an agreement dated 14th October, 1983 on the terms and conditions recorded therein and also claimed to have obtained power of attorney dated 14th June, 1984 in order to enable him to develop the suit land and carry out various acts, deeds and things relating to the suit land.

6. The plaintiff claimed to have engaged services of an Architect and got the building plan prepared so as to develop the said property. He also claimed to have obtained necessary approval of the Bombay Municipal Corporation for construction of three buildings on the suit land consisting of 48 self-contained flats, 9 flats were to be provided to the original owners and the tenants having their premises on the suit lands and also one flat to the defendant No. 39. The plaintiff claimed to have decided that the society be ultimately formed of the persons interested in owning the flats in the new building, who would ultimately, become members of the co-operative society in whose favour the suit land and the buildings constructed thereon were to be conveyed.

7. The plaintiff further stated that, accordingly, the plaintiff entered into individual agreements with defendant Nos. 1 to 38 to whom he had agreed to sell and decided to allot 38 flats in new buildings proposed to be constructed on the suit land. The plaintiff had decided to retain one flat for himself and accordingly, the plaintiff had executed 38 agreements in favour of defendant Nos. 1 to 38. He claimed to have completed of about 90% of the construction work in all the three buildings and alleged breach of agreement on the part of defendant Nos. 1 to 38. He claimed to have called upon all the said defendants to pay arrears of installments so that the construction work could be completed. However, according to the plaintiff, defendant Nos. 1 to 38 failed and neglected to pay the regular installments and or arrears thereof, with the result, further work could not be proceeded with. In the meantime, the cost of the project also went up due to the hike in the price of building materials etc., as a result; plaintiff claimed to have spent Rs. 4,00,000/- from his own pocket.

8. In the month of May 1990, a police complaint came to be lodged by defendant No. 1 against the plaintiff, which, ultimately, resulted in enquiry by the Anti-Corruption Bureau requiring the plaintiff to visit police station regularly. Ultimately, police complaint came to be registered against him bearing C.T. No. 2 of 1991 in the Court of Magistrate at Borivali. The relations between the plaintiff and defendant Nos. 1 to 38 soared and became bad to worst. The plaintiff apprehending forcible dispossession at the hands of the said defendants chose to file above suit for permanent injunction against them joining defendant No. 39 as one of the parties to the suit.

Contesting Defendants' Case :

9. The contesting defendants on being summoned appeared and filed their written statement denying all the adverse allegations made in the plaint. The contesting defendants amongst other claimed to be the promoter members of the society known as 'Ratna-Vijay Cooperative Housing Society (proposed), Mumbai formed in the year 1983, which for the various reasons could not be registered. According to the said defendants, the society was formed by some employees of the E.S.I.S. and Potdar Hospital working at Bombay. They acquired suit property described hereinabove located at Babhai Naka, Borivli (West), Bombay, from their joint contribution. The plaintiff, who is an employee of E.S.I.S. Hospital, Mumbai, was elected as a Chief Promoter of the said proposed Society only for the purpose of acquiring the suit land in his name and development thereof in his official capacity as a Chief Promoter, so as to facilitate smooth formation and registration of the proposed society. One Shri. D. V. Salvi being one of the promoters was also nominated as one of the Organizers and one ad hoc body was also formed to assist the said Chief Promoter and the Organizer.

10. According to the contesting defendants (defendant Nos. 1 to 38), plaintiff did not acquire suit property in his individual or personal capacity or as a builder promoter but only as a trustee and/or representative of the contesting defendants and other members of the proposed society.

11. According to the said contesting defendants, the plaintiff was put in possession of the suit property as a Chief Promoter of the proposed Society. He was entrusted with the task of developing the property under the supervision of an elected ad hoc committee. The sizable funds worth about Rs.46 lakh were placed at their disposal to develop the suit land. According to them, the original estimated cost of the whole project was Rs.28 lakh. It was, therefore, reasonably expected that the project could be completed in a reasonably short time with available funds.

12. Despite this the plaintiff persuaded the members of the proposed society to enter into the agreement with him prepared as per the provisions of the Maharashtra Ownership Flats Act, 1963. In the belief of the contesting defendants; since the plaintiff had engaged the services of a Solicitor firm on behalf of the proposed society, the said defendants and other members under bonafide belief signed and executed agreements in his favour to purchase individual apartments. According to them, these agreements do clearly indicate that the said land was acquired in the name of the plaintiff as Chief Promoter of the proposed society. Some of the agreements were even registered before the Sub-Registrar of Assurances although it was not necessary to do so; as the society was to be formed and registered, and that the land was acquired by the proposed Society in the name of the plaintiff, who was elected as a Chief Promoter of the said society.

13. According to the said defendants, some members initially had opened an account in the joint name of plaintiff with one Mr. Vichare and one Mrs. Salian, who was defendant No.6 in the suit. The said account was opened in the Maratha Mandir Co-operative Bank, Thakurdwar, Bombay. During the period June 1983 to October 1983 about Rs. 4.5 Lakh were deposited in the said joint account by the then promoter Members. The account was, thereafter, converted into another S.B. account, opened in the name of the Chief promoter of the proposed society, in the same bank with direction to operate the account under joint signature. However, the plaintiff somehow managed to get the operation of the account under his own signature and started siphoning amounts from that account to his individual account. By October 1983, the agreement for sale in respect of the land was already executed in favour of the proposed society represented by the plaintiff. The members were therefore, under bonafide belief that the account was being operated jointly by their elected office bearers, as such they went on contributing their amounts in the name of Chief Promoter of the said proposed society.

14. Despite availability of sizable fund, considering the reasonable estimate of the project, the progress of construction work was very slow and the project was hanging fire between the period 1983 to 1988. During this period, the contesting defendants were regularly holding ad hoc body, Managing Committee meetings. The regular meetings of the General Body also took place from time to time. The minutes of these meetings were being recorded but the minutes books being in the custody of the plaintiff, the Minute Books have been withheld by him with ulterior motives.

15. Since the project was not making any progress despite availability of funds, the members became suspicious about the motive of the plaintiff and demanded accounts from him which the plaintiff was unwilling to render. Repeated efforts made by the said defendants proved futile. The plaintiff had started giving evasive replies to the Ad hoc Managing Committee. Neither did he attend the meetings held on 31.10.1989, 5.11.1989 and 12.11.1989 nor produced any accounts before the Ad hoc Managing Committee.

16. The defendants had also preferred counter claim against the plaintiff and had contended therein that in view of the claim set up by the plaintiff that he was a Chief Promoter of the society, these defendants (plaintiffs to the counter claim) contended that the plaintiff was thus under various statutory obligations to follow the mandate of various provisions of the Maharashtra Ownership Flats Act, 1963; which he did not follow or perform. Hence specific performance thereof was sought to be claimed.

Appointment of Court Receiver :

17. On the above canvass of the dispute, during the pendency of the suit by orders dated 20th September, 1st/4th October 1993, the Court Receiver, High Court, Bombay came to be appointed as Receiver with direction to take possession of the suit buildings on or after 31st October, 1993 with further directions as contained in the said order. Accordingly, Court Receiver took possession of the suit property and suit property became custodia legis.

18. The law on the subject is now well settled. A Receiver is an officer of the Court. Being such officer, his possession is simply the possession of the Court and any attempt to disturb possession of the Receiver without the leave of the Court is a contempt of Court. The mere appointment of a Receiver operates as an injunction against the parties, their agents and persons claiming under them, restraining them from interfering with the possession of the Receiver except by permission of the Court. But if a party is guilty of breach of injunction, such act amounts to contempt and can be brought to the notice of the Court, so that proper steps may be taken against the party guilty of contempt. In this view of the matter, the Court Receiver has submitted his report dated 7th September, 2001 to this Court, and brought to the notice of the Court that after order dated 19th April, 2001, contesting defendants have forcibly entered into the suit flats by breaking open the old locks and have put their own locks, without prior permission of the Court Receiver and/or from this Court.

19. The Court Receiver has sought following directions from this Court :

"(a) Whether the Court Receiver, High Court, Bombay, should proceed to take back actual physical possession of the flats mentioned in the Court Receiver's letter dated 16th May, 2001 addressed to the Officer-in-Charge, Borivli Police Station, from whosoever found in possession, by breaking open the locks if necessary, with the help of police and thereafter lock and seal the same.

(b) If the answer to prayer clause (a) is answered in the affirmative, the concerned Police Station may be directed to provide necessary police assistance to the Court Receiver for executing the order.

(c) The defendants herein may be directed to deposit in the office of the Court Receiver a sum of Rs. 3,77,200/- being the amount of arrears towards security charges @ Rs. 4,600/- per month for a period from October 1994 to 31st July, 2001 within a stipulated time as this Hon'ble Court may deem fit to enable the Court Receiver to make payment thereof to the said Security Agency."

20. The respective parties to the suit were called upon to file their respective objections; if any, either to support or oppose the directions sought for by the Court Receiver. Accordingly, parties to the proceedings have filed their respective affidavits on record. The contents thereof need no reproduction at this stage as the same are being referred to in the relevant part of this order; while dealing with the rival submissions of the parties advanced before this Court.

RIVAL CONTENTIONS

21. The original plaintiff is seeking to support the report submitted by the Court Receiver; whereas the contesting defendants have taken exception to the same. In order to appreciate the rival contentions and submissions made, it will be useful to first refer to the point of view canvassed by the learned senior counsel Ms. Anklesaria, representing the interest of the contesting defendants.

Arguments of contesting Defendants

22. (a) The learned Counsel for the contesting defendants contended that all the contesting defendants were already in possession of their respective flats when the Court Receiver took formal possession of the respective suit buildings. To be precise, the contention of the said defendants is that they are in possession of the respective flats since prior to the date of filing of the suit, which was filed on 28th January, 1992. In support of this contention, reliance was sought to be placed on the order of the City Civil Court dated 1.7.1992; wherein directions were issued to the plaintiff that he should continue and complete the construction work; which was left incomplete in respect of the suit premises, by 31st October, 1992, and, was further directed to hand over possession of the flats, soon after construction work was over, to each of the defendants in whose favour agreements were executed. In the said order, it was also mentioned that if the plaintiff, for whatever reasons, failed to comply with the directions, the defendants shall be at liberty to take over the flats for completion of construction work on and from 1.11.1992. The learned Counsel for the defendants, relying upon this part of the direction, urged that each of the defendants have taken over the possession of their respective flats since plaintiff failed to complete the construction work on or before 31st October, 1992in pursuance of the directions given by the trial Court. That is how the contesting defendants are claiming to be in possession of their respective flats in their own rights under the order of the trial Court.

(b) It was further contended that the City Civil Court while appointing Court Receiver under its order dated 30.9.1993/1.10.1993 did not direct the Court Receiver to take possession of the individual flats of the contesting defendants, nor were there any directions issued to the Court Receiver to dispossess the contesting defendants while taking possession of the suit building. In this view of the matter, submission was made that the Receiver had taken possession of the 3 buildings, but he did not take possession of individual flats; which were in actual, physical possession of the individual flat owners viz. the contesting defendants.

It was further contended that the Court Receiver took possession of the said building on 6.11.1993. The plaintiff was not present at the relevant time. Nine flats were occupied by some other occupants. Though the contesting defendants were not physically occupying the flats at the relevant time, the flats were under their lock and key. In their submission, the Court Receiver took only formal possession of the buildings but did not take possession of the individual flats. In this view of the submission, it was contended that all the contesting defendants were already in possession of their respective flats when Receiver took formal possession of the 3 buildings.

(c) In order to substantiate this submission, the report of the Court Receiver dated 12th November, 1993 was sought to be relied upon; so as to demonstrate that defendant Nos. 1 to 13, 15 to 20, 22 to 24, 26 to 31 and 33 to 37 were the persons who were present on the spot when possession of the suit buildings was taken over by the Court Receiver and a board was displayed at the entrance of the suit land notifying that the property was in possession of M/s. Deshmukh and Associates and that the trespassers shall be prosecuted.

(d) It was further pointed out that one Mr. Vasant Shankar Sawant, Constituted Attorney of the aforesaid contesting defendants had given an undertaking on behalf of the said defendants that the said defendants would safeguard the property at their entire risk and costs and had taken responsibility to keep the Court Receiver informed of the enforcement, if any, from time to time. It was sought to be pointed out that the said attorney of the said 33 defendants had undertaken responsibility on behalf of the said defendants to look after the suit flats located in the said buildings. It was thus urged that it should be presumed that the contesting defendants were in actual physical possession of their respective flats.

(e) On the basis of the hand written report of the Court Receiver, dated 6th November, 1993 placed on record, it was further sought to be urged that the Court Receiver had affixed his board on each wing of the buildings, so as to show his possession over the buildings but he did not mention therein that he had taken possession of any individual flat. What was notified was the formal possession of three buildings only. In their submission, 9 flats were in actual, physical possession of the other flat owners; whereas other 33 flats were under lock and key of the remaining defendants, namely, present contesting defendants.

(f) The reliance was placed on the letter dated 12th April, 1994 alleged to have been written by advocate for and on behalf of the defendants; wherein it was informed to the Court Receiver that his clients had an occasion to notice some miscreants entering in the suit property and loitering in and around the said 3 buildings. In the circumstances, the request was made to the Court Receiver to give surprise visit to the suit buildings and take notice of the said persons who are squatting in the said buildings. It was further informed to the Court Receiver by the said letter that the said persons have been causing harassment to his clients. The Court Receiver was, therefore, requested to depute two security Guards in order to avoid any trespass in the said buildings. It was further informed by the said letter that the undertaking given by his client Shri. V. S. Sawant dated 6.11.1993 as a Constituted Attorney of the said 33 occupants has been withdrawn and the Court Receiver was requested to take steps to safeguard the suit property. On the basis of this letter, a contention was advanced that the said letter makes a reference to the possession of respective 33 flat owners, they were not other than the contesting defendants. In the submission of learned counsel for the said defendants, this material is sufficient to establish her clients' possession over respective flats much prior to the date of appointment of Court Receiver.

(g) It was further argued, on the basis of one another letter dated 9.4.1997 written to the Court Receiver informing him that though the Court Receiver had taken possession pursuant to the order dated 4.10.1993, but he did not put his locks on the respective flats which were unoccupied at the relevant time. In the said letter a threat was given to the Court Receiver that if he failed to visit the site and if he did not remain present, then, the contesting defendants will be compelled to enter into the flats by breaking open the locks. The defendants also pressed into service some other correspondence ensued between the contesting defendants and/or their advocate with the Court Receiver. Such letters written appear to be dated 19.7.1997, 21.12.1997, 2.1.1998, and 17.4.1998, the copies of which were also placed on record, so as to demonstrate that each of the defendants were in possession of their respective flats in the sense that flats were under lock and key of the respective contesting defendants and that is how the same were occupied by them.

(h) It was further pointed out that on 19.4.2001 this Court had directed the Court Receiver to report how much construction was left and to what extent it was completed and who were the persons in occupation of the suit premises. By that time, the contesting defendants had further occasion to notice some miscreants breaking open locks and entering into the premises as such the contesting defendants had no option but to put the locks on their respective flats although the property was legally in the lands of the Receiver. In this view of the matter, it was sought to be contended that ample material is available on record to infer that the contesting defendants were already in possession of their respective flats when Court Receiver was appointed and possession of the building was taken over by him.

It was further submitted that most of the contesting defendants are from lower income group of the Society. They had decided to construct a building with a view to have their own flats for their residence. Most of them are Government servants working with ESIS and Poddar Hospitals at Mumbai. A society by name 'Ratna Vijay Co-op. Housing Society' came to be formed with a view to construct a building for getting flats. It was thus contended that looking to the occupation of flats and the investments made by them, their possession should be confirmed and the report of the Court Receiver be rejected.

Arguments of Plaintiffs

23. (a) The learned Counsel appearing for the original plaintiff Shri. Godbole seriously disputed the contentions raised by the contesting defendants that each flat owner was in possession and occupation of the flat in question. He contended that the contesting defendants had made their forcible entry in the suit premises when the property was custodia legis. In order to substantiate this submission, he, firstly, relied upon the order of the trial Court dated 1.7.1992 and drew my attention to the directions issued by the learned Judge of the City Civil Court, Bombay, wherein it was made clear that the defendants who had made payment of the entire amount by 31.12.1988, including the payment to be made at the time of taking possession, the plaintiff shall hand over possession of the completed flats on or before 31.10.1992 without charging them the escalation costs at the time of handing over possession. However, it was made clear in the order of the trial Court that the defendants who had made payment of all the installments except the last installment on or before 31.12.1988 the plaintiff shall hand over possession to them of their respective flats upon payment of balance amount as well as the escalation cost. It was also made clear in the said order dated 1.7.1992 that the plaintiff would not obstruct defendant Nos. 3, 5, 9, 20 and 31 from so occupying; who were already in occupation of their respective flats. Based on this material directions the learned counsel for the plaintiff urged that defendant Nos. 3, 5, 9, 20 and 31 only were entitled to occupy their respective flats since they were in possession thereof. Rest of the flats were never occupied by anybody muchless by the contesting defendants except defendant No.5.

(b) He further urged, based on Notice of Motion No. 1291 of 1993 and consequent order dated 30th September, 1st/4th October 1993, that certain directions were sought against the Court Receiver, directing him to hand over possession of the flats to each of the defendants after making due and necessary enquiry as to whether each of the defendant has fulfilled the requirements of the said order dated 1st July, 1992; so as to appoint a fit and proper person from the panel of Architects maintained by this Court as Commissioner to visit the suit property. He thus urged that none of the contesting defendants except No. 5 were in possession of the flats in respect of which possession is being claimed before this Court for the first time in the present proceedings.

(c) He further pointed out that from the text of annexure as Ex.A to the report of the Court Receiver, that on 6th November, 1993, following flats were only occupied by the undermentioned occupants, the details of which are as under :

“ Flat No.	Occupants
A WING
8. 9. 11.	Anant Mhatre. Manoharbhai Khandawalla. Ramshankar Thakur.
B WING
4. 7. 8. 12.	Sushama Karadkar. M. S. Mokashi. P. S. Desai. S. A. Khirsagar.
C WING
1. 4.	V. S. Sawant. G. B. Rane.

He, based on the above material available on record, submitted that rest of the flats were lying vacant and by a subsequent order it would be further clear that only 5 defendants were allowed to continue with their occupation of the flats, namely, defendant Nos. 3, 5, 9, 20 & 31 respectively.

(d) It was further pointed out that one Mr. V. S. Sawant, one of the occupants, Constituted Attorney for other 33 occupants, had given a written undertaking to protect the suit property from any encroachment. He placed reliance on the letter of the Advocate for the defendants written to the Court Receiver on 12th April 1994; wherein a request was made to depute security guards to protect the property. Based on this letter, he contended that none of the defendants had at any time claimed to be in possession of the flats in their individual rights in any manner whatsoever. In his submission, if the letter referred to above is read in its proper perspective, it would be clear that the letter has been issued by the counsel not on behalf of the individual alleged occupants but on behalf of one Ratna Vijay Co-operative Housing Society, and the society had claimed possession over the flats. At no point of time any individual contesting defendant had come forward to claim possession of any of the flats in question. He, therefore, urged that even on the basis of this letter, possession of the contesting defendants cannot be inferred. In order to falsify the stand taken by the said defendants he placed reliance on the order of this Court dated 2nd May, 1995 passed in A.O. No. 195/1995 and A.O. No. 196/1995 passed by Shri. Jhunjhunwala, J. (as he then was). In his submission, sufficient material is available in the said order to negate the case canvassed by the contesting defendants.

(e) Lastly, strong reliance was placed on the letter dated 19th June, 2001 written by Shri. M. C. Dixit, Advocate for the society; wherein a categorical statement was made that the defendants have taken in possession of the respective flats although the property vests in the Court Receiver. In his submission, this admission is sufficient to demonstrate that the forcible entry was made by the contesting defendants when the property was custodia legis.

(f) He contends that if possession of the Court Receiver is the possession of the Court then in that event forcible dispossession of the Court Receiver amounts to contempt of Court and therefore no leniency should be shown in favour of the contesting defendants who are guilty of making forcible entry and trespassed in the flats which is part of the suit property/buildings.

24. He alleged that one Shri. V. S. Sawant, Constituted Attorney was the person working behind the scene and had acted as a constituted attorney for all the contesting defendants, as such he is also guilty of contempt of Court and liable for punishment.

He, in the aforesaid backdrop of his submissions, prayed for acceptance of the Court Receiver and suitable directions to the Court Receiver as sought by him in his report dated 7th September, 2001.

Rulings relied upon

25. The learned Counsel appearing for the rival parties placed reliance on some authorities which needs some consideration.

The learned Counsel for the contesting defendants placed reliance on the judgment of the Apex Court in Everest Coal Co. v. State of Bihar, AIR 1977 SC 2304, the Apex Court was concerned with proceeding where suit had been instituted and proceeded with without the leave of the Court. After the suit had been instituted, the leave to proceed against the respondent was granted. The appeal was preferred to the Apex Court. While disposing of the same, and issuing directions to the Court Receiver, the Apex Court observed thus :

"When a Court puts a Receiver in possession of property, the property comes under Court custody, the Receiver being merely an officer or agent of the Court. After obstruction or interference with the Court's possession sounds in contempt of that Court. Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty of likely invalidation of the suit or other proceedings."

The learned Counsel appearing for contesting defendants contended that ample material is available on record to show that on the date of appointment of Court Receiver, the contesting defendants were already in actual possession of their respective flats, consequently, it cannot be said that the Court Receiver, at any point of time was put in possession of the flats in question. If that be so, by no stretch of imagination it could be contended that the property had become custodia legis and that the contesting defendants had made their forcible entry in the disputed flats.

26. The learned Counsel appearing for the plaintiff placed reliance on the judgment of the Apex Court in the case of Anthony C. Leo v. Nandlal Balkrishnan AIR 1977 SC 173 and sought to place reliance on the following observations:

"Where a Receiver appointed by the Court is in actual physical possession of a property, no one, whoever he may be, can disturb the possession of the receiver and the Court may hold such person who disturbs receiver's possession is guilty of committing contempt of Court. A man who thinks he has a right paramount to that of receiver, must before he takes any steps of his own motion, apply to the Court for leave to assert his right."

Based on the aforesaid judgment, the learned Counsel for the plaintiff contended that if the contesting defendants have made their forcible entry, then, such illegal entry should not be protected by any Court muchless by this Court.

27. The learned counsel for the plaintiff further placed reliance on the judgment of the Supreme Court in the case S. P. Chengalvaraya Naidu v. Jagannath AIR 1994 SC 853 and contended that the Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court of law. He can be summarily thrown out at any stage of litigation. In this view of the matter, he contended that specific directions for removal of the defendants in question be issued.

28. The learned counsel for the plaintiff in support of his contention also placed reliance on the judgment of the Supreme Court in the case of Kanhaiyalal v. Dr. D. R. Banaji AIR 1958 SC 725 and contended that any possession or occupation of the property without leave of the Court, when property is custodia legis, is illegal in the sense that the party claiming possession without leave of the Court is in illegal possession and shall be deemed to have committed contempt of Court. Such possession should not be protected in any manner whatsoever.

Principles derived from the above cases:

29. The Property in 'custodia legis' means the property is kept in possession and under directions of the Court. Any property or security under the custody of the Court is 'custodia legis'; which safeguards interest of the party, who is ultimately successful in the proceedings. It is held that any litigative disturbance of the Court's possession without its permission amounts to contempt of its authority [see Everest Coal Co. v. State of Bihar [supra]].

30. When the Court has appointed a Receiver and the receiver is in possession, his possession is the possession of the Court and can not be disturbed without its leave. No one, whoever he may be, can disturb the possession of the receiver. The Court may hold such person who disturbs receiver's possession as guilty for committing contempt of the Court and such person is liable to be imprisoned for the contempt. The Court will not allow the possession of its receiver to be interfered with or disturbed by anyone, whether claiming by title paramount to or under the right which the receiver was appointed to protect. A man who thinks he has a right paramount to that of the receiver must, before he presumes to take any step on his own motion, apply to the Court for leave to assert his right. If the receiver has done anything wrong, the party who has suffered the wrong must apply to the Court which appointed the receiver. In this view of the matter, it is clear that if any one who makes an attempt to impede or undermine or obstruct or disturb the possession of the Court Receiver, he is liable to be punished, as, such act will amount to contempt of Court, as held by the Apex Court in the case of Dhananjay Sharma of Haryanan (1995) 3 SCC 757.

THE ISSUES

31. The aforesaid rival submissions and pleadings give rise to following issues :

(i) Whether the contesting defendants were in possession of the disputed flats when the Court receiver had taken possession of the suit property ?

(ii) (a) Whether any action is warranted on the report submitted by the Court Receiver ?

(b) If yes, what action ?

CONSIDERATION

32. The facts narrated hereinabove, would make it clear that in pursuance of the order passed by the Bombay City Civil Court, Bombay, in a suit instituted by the plaintiff on 1.7.1992; while considering Notice of Motion No.1852/92 and Notice of Motion No.2037/92 by which the plaintiffs were directed to complete the incomplete work dt. 31.10.1992, failing which defendants were given liberty to claim possession and to get the construction work completed on and from 1.11.1992. It is thus clear that separate order of the trial Court permitting the defendants to take over possession of the respective flats was contemplated. There is no such no order permitting the defendants to enter into possession of the property. The contesting defendants could not have entered into possession of their respective flats without reference to the Court. The purport of the order was failure on the part of the plaintiff to complete the work on or before 31.10.1992, it was made open to the defendants to take over the construction work with the formal leave of the Court rather than assisting the plaintiff in carrying out the construction work. On the date of the order, 9 flats were in occupation and possession; out of which one flat was in occupation of defendant No. 5 [Mr. V. S. Sawant], rest of the flats were lying vacant and unoccupied, i.e. not occupied or possessed by anybody. There is nothing on record to show that in pursuance of the said directions issued by the Bombay City Civil Court, Bombay, vide its order dated 1.7.1992 any attempt was made by any of the contesting defendants to help the plaintiff to enable him to complete the construction work in question. Therefore, it cannot be said that the contesting defendants had taken possession of any of their respective flats in pursuance of the said order.

33. The order dated 30th September/1st October/4th October, 1993 passed by the learned Judge of the City Civil Court while deciding Notice of Motion in question makes it clear that the Court Receiver was appointed by the said Court with direction to take possession of the suit property on or after 31st October, 1993. There is no reference in the said order, that till 4th October, 1993, any of the contesting defendants were in possession of the said flats. In the said order, there is further intrinsic evidence available to suggest that none of the contesting defendants were in possession of their respective flats in respect of which possession is being claimed by them. There is further evidence available on record in the form of Civil Application No. 8475 of 2000; which was moved by the contesting defendants to seek direction from the Court to allow the said defendants to complete the construction work at the suit site and to submit the vouchers of labour charges etc., one of the prayer made therein was as under :

"... The Court Receiver be directed to hand over respective tenements to the petitioners and the respondents (save and except Respondent Nos. 1, 4, 5 and 6) on their depositing dues ascertained and fixed by the learned Commissioner for taking Accounts without prejudice to the contentions of the petitioners."

In para 24 of the said application, a categorical admission was given by the contesting defendants which reads as under :

" The petitioners further state that possession of the suit property was with them till 13th July, 1992 i.e. even after a period of six months after the filing of the suit No. 442/1992. On 13th July, 1992, the learned Advocate of the petitioners wrote a letter to the Advocates and Solicitors of the Respondent No. 1- plaintiff that possession would be handed over to the Respondent No. 1 at the site on 13.7.1992 and accordingly possession was handed over to the Respondent No. 1 on 14.7.1992 for the limited purpose of completing the balance construction work on or before 31.10.1992."

The aforesaid para of the Civil Application is a clear admission given by the contesting defendants that they were not in possession of any of the flats when Court Receiver took possession of the said property.

34. It is further pleaded in para 50 of the said Civil Application as under :

"The petitioners are filing this application as most of them have suffered mental anguish and torture over the last 17 years as many of them are without shelter despite sizable payments made by them to the respondent No. 1. This Civil Application is an attempt to resolve the stalemate created by the dismissal of the proceedings of the rival parties and this will pave the way for giving possession to the homeless petitioners who are anxiously waiting for their turn for getting their tenement."

In para 52 of the Civil Application, the pleadings incorporated therein, will further show that the contesting defendants were not in possession of their respective flats. It leads me to an inference that they made their forcible entry without permission of the Court Receiver and/or of this Court. Ample material is available on record to infer that this forcible entry was engineered and was at the instance of the Secretary of the said society and Constituted Attorney of the said defendants Shri. V. S. Sawant under common understanding and in furtherance of the common intention to dispossess the Court Receiver. This act committed by each of the contesting defendants amounts to an act constituting contempt of court. I further hold that all the contesting defendants guilty of contempt of Court.

35. In the circumstances and for the reasons recorded hereinabove, I accept the report submitted by the Court Receiver in toto and in exercise of powers under Section 151 of the Civil Procedure Code I direct the defendants Nos. 1, 2, 4, 6, 10, 11, 14, 16, 18, 19, 23, 24, 26 to 30 and 33 to 36 including V. S. Sawant, claiming to be the Secretary of the Ratna Vijay Co-operative Housing Society to remove themselves from the suit property i.e. from, the respective flats occupied and possessed by them in the building, presently known as Ratna Vijay Co-operative Housing Society, situate at village Eksar, Taluka and district Borivli, Bombay, bearing Survey No. 15, Hissa No. 1 (Part), City Survey No. 124/1 to 3, 123 and 123/1 of village Eksar, original plot No. 178 of Town Planning Scheme, Borivli No. III (draft) and bearing final plot No. 286 of T.P.S. Babhai, Borivli (West), Bombay, with their property and belongings, if any, within 8 weeks from today, failing which the Court Receiver is directed to take physical possession of the flats occupied by the said contesting defendants (except flat No. C/1 of defendant No. 5) and/or possessed by the society and/or as mentioned in the Court Receiver's letter dated 16th May, 2001 addressed to the Officer in charge of Borivli Police Station, (excluding flat No. 1 occupied by Shri. V. S. Sawant, defendant No. 5) from whomsoever found to be in possession, by breaking open the locks, if necessary with the help of police and thereafter lock and seal the same. The same police station is directed to provide necessary police assistance to the Court Receiver for executing this order.

36. All the contesting defendants are further directed to deposit in the office of the Court Receiver a sum of Rs. 3,77,200/- being the amount of arrears towards security charges at Rs. 4,600/- per month for the period from October 1994 to 31st July, 2001 within a period of 12 weeks from today to enable the Court Receiver to make payment thereof to the security Agency concerned and Shri. Vasant Shankar Savant is directed to withdraw his letter dated 2nd August, 2001 addressed to the Court Receiver.

37. All the contesting defendants, under common understanding and in furtherance of their common intention forced their illegal entry in the suit property referred to hereinabove, without permission of this Court, are held guilty of contempt of this Court. Shri. V. S. Sawant (defendant No. 5) has also committed contempt of Court by writing letter dated 2nd August, 2001 in addition to his role played by him as described hereinabove and is directed to withdraw his letter dated 23rd August, 2001, which he could not have written in the tone and language used in the said letter. However, considering the circumstances brought on record and the fact that the said contesting defendants have parted with substantial amounts by way of consideration and also the fact that forcible entry was made by them is in an anxiety to occupy their respective facts for which they have paid huge amounts to the plaintiff (builder), a nominal fine of Rs. 250/- (two hundred fifty only) is being imposed on each of them by way of punishment. Fine is to be paid within a period of 3 weeks from today. In default the contesting defendants, shall suffer and/or undergo a simple imprisonment for period of 3 days.

38. At this stage, learned Counsel for the contesting Defendants prayed for time to approach the appellate Court. Accordingly, contesting defendants are granted 12 weeks time to approach the appellate Court subject to their filing usual undertaking within 2 weeks from today to the effect that they will vacate the respective flats occupied by them on their own, if they fail in their challenge before the appellate Court, without any demur and/or creating any obstruction, and that they will not create any third party interest in the said flats. The Court Receiver is directed not to take any action for 12 weeks from today. On failure to furnish undertaking within a stipulated period, the Court Receiver and/or plaintiff shall be free to execute this order in accordance with law and shall also be free to take any other step as may be available in law to implement this order.

The report submitted by the Court Receiver stands disposed of in terms of this order.

C.C. expedited.

Order accordingly.