TAPAN TANAY HALDAR v. GOPAL CHANDRA HALDAR — 1997 DIGILAW 336 (CAL)

SUDHENDU NATH MALLICK, J. ( 1 ) THESE two revisional application heard analogously have been preferred by the respective defendants-petitioners viz. , Tapan Tanay Halder and Mukunda Chandra Halder under section 115 of the Code of Civil Procedure against the order dated 24. 5. 1994 passed by the learned District Judge, 2nd Court, Alipore in Misc. Appeal Nos. 77, 78 and 98 of 1994 (heard analogously) reversing the order dated 11. 2. 94 passed by the learned Assistant District Judge, 7th Court at Alipore in Title Suit No. 169 of 1987 allowing an application under Order XL Rule 4 of the Code of Civil Procedure preferred by the petitioner Mukunda Chandra Halder of C. O. No. 2652 of 1994. These two revisional applications heard analogously have been preferred by the respective defendants-petitioners viz. , Tapan Tanay Halder and Mukunda Chandra Halder under Section 115 of the Code of Civil Procedure against the order dated 24. 5. 1994 passed by the learned District Judge, 2nd Court, Alipore in Misc. Appeal Nos. 77, 78 and 98 of 1994 (heard analogously) reversing the order dated 11. 2. 94 passed by the learned Assistant District Judge, 7th Court at Alipore Title Suit No. 169 of 1987 allowing an application under Order XL Rule 4 of the Code of Civil Procedure preferred by the petitioner Mukunda Chandra Halder of C. O. NO. 2652 of 1994. ( 2 ) IT may be mentioned here that the original number of the Title Suit No. 169 of 1987 was Title Suit No. 44 of 1971 filed in the 10th Court of the Subordinate Judge at Alipore which was successively transferred to different Courts and ultimately re-numbered as Title Suit NO. 169 of 1987 of the 7th Court of the Assistant District Judge at Alipore. The aforesaid suit was filed on 17. 9. 71 by one Sri Hara Lal Halder since deceased against the present two petitioners and others for dissolution of partnership and for accounts etc. , in respect of the assets of the partnership business as detailed in the plaint-schedule. It was the plaint case that the partnership was created by a registered Deed executed by the parties on 14. 2. 68. It may also be noted that the aforesaid suit abated on the death of the original plaintiff whose heirs were not substituted according to law. The trial Court by order no. 211 dated 25. 4. It was the plaint case that the partnership was created by a registered Deed executed by the parties on 14. 2. 68. It may also be noted that the aforesaid suit abated on the death of the original plaintiff whose heirs were not substituted according to law. The trial Court by order no. 211 dated 25. 4. 75 ordered that the suit to abate. ( 3 ) BUT the trouble started since the abatement of the suit due to in fight among the defendants over a property of the deceased plaintiff being premises No. 91, Mahatma Gandhi Road, P. S. Budge Budge. The records of the said dead suit have become a strange labyrinth of indiscriminate papers, application and orders passed by the trial Court and the Appellate Courts at different points of time. However, it would be necessary to note the undisputed or admitted facts on record for the purpose of appreciating the scope of the present two revisional applications and to pass appropriate orders on the same. ( 4 ) AFTER the filing of the suit and during the life-time of the original plaintiff, the parties to the suit were appointed as Receiver over the plaint-schedule properties as per direction of the learned Appellate Court vide order no. 76 dated 31. 7. 72. The Appellant Court's order was passed by the learned Additional District Judge, 2nd Court at Alipore in Misc. Appeal No. 198 of 1972 on 18. 7. 72. This High Court in its revisional jurisdiction modified the aforesaid order of the First Appeal Court and directed as follows in C. R. No. 2392 of 1972 by Order dated 4. 4. 72:-"all the parties before us agree preferably practising lawyer of the Alipore Court should be appointed Receiver. We think that the parties who were appointed Receivers of the different businesses by the Court of Appeal below should be left incharge of the said business, but under the control and supervision of the Receiver to be appointed by the Trial Court". On the basis of the aforesaid order, the Trial Court passed order no. 87 dated 2. 6. 73 appointing one Mr. Dipen Dey, a practising Advocate of Alipore Court as supervisory Receiver. The said Mr. Dey is the O. P. NO. 6 in both the revisional applications before this Court. Abatement of the suit was recorded by the Trial Court by its order no. 87 dated 2. 6. 73 appointing one Mr. Dipen Dey, a practising Advocate of Alipore Court as supervisory Receiver. The said Mr. Dey is the O. P. NO. 6 in both the revisional applications before this Court. Abatement of the suit was recorded by the Trial Court by its order no. 211 dated 25. 4. 75. By the same order, the Trial Court directed Mr. Dey to return the writ issued to him together with the accounts by 7. 5. 75 and further stated that Mr. Dey will be discharged from the post of the Receiver subject to the passing of the accounts. By order no. 212 of the same date, the Trial Court further indicated that in view of the abatement of the suit, the Court was no longer seisin of the same and as such all pending applications stood disposed of. It appears from the Lower Court Records that as per order no. 271 dated 21. 2. 78 the Receiver submitted his accounts and he was directed to serve copy of the same upon the defendant nos. 1 and 2. Other defendants were served copies of the accounts. From order no. 274 dated 26. 4. 78, it appears that the Receiver submitted a part-report and the Court fixed 23. 5. 78 for filing report by the Receiver. From order no. 276 dated 4. 7. 78, it appears that the Receiver Mr. Dey submitted a report regarding accounts. In the meantime, an order was passed by the trial Court on 10. 7. 74 directing the Receiver to make over possession of the office at no. 91, Mahatma Gandhi Road to the defendant no. 3 Mukunda Chandra Halder, the petitioner in the second revisional application before this Court. The said order was, however, recalled by the trial Court by the order no. 220 dated 18. 12. 79. By order no. 224 dated 5. 3. 80, the trial Court directed the Receiver to hold the premises no. 91, Mahatma Gandhi Road till the determination of the title of true owners thereof. In the same order, the trial Court noted that the Receiver has been discharged but he has not submitted his accounts up-todate. The Receiver was directed to submit all accounts by 31st May. 1980. It further appears that the defendant nos. 91, Mahatma Gandhi Road till the determination of the title of true owners thereof. In the same order, the trial Court noted that the Receiver has been discharged but he has not submitted his accounts up-todate. The Receiver was directed to submit all accounts by 31st May. 1980. It further appears that the defendant nos. 1 and 2 i. e. Gopal Chandra Halder and Gobinda Chandra Halder since deceased move the trial court for handing over possessing of the premises no. 91, Mahatma Gandhi Road to them and for other directions. The trial Court in its order no. 458 dated 7. 12. 90 held that the Receiver was appointed in respect of the business mentioned in the plaint-schedule and he was never so appointed or given incharge of the immovable property at 91, Mahatma Gandhi Road, Budge Budge. The leaned trial judge has further held that there was nothing on record to show that the Receiver took charge of the said property at 91, mahatma Gandhi Road by any order of the Court. Under the circumstances, the learned Trial Court held that there was no scope to pass any order directing the Receiver to make over possession of the premises no. 91, mahatma Gandhi Road to the defendant Nos. 1 and 2. Accordingly, the application was rejected. ( 5 ) IT further appears that thereafter the defendant no. 3 i. e. Mukunda Chandra Halder who is the petitioner in the second revisional application filled a petition in the trial Court for direction upon the Advocates-Receiver Dipen Dey to make an enquiry and report of the offences committed by the defendant nos. 1 and 2 in respect of the premises no. 91, mahatma Gandhi Road. It was alleged in the said application that the defendant nos. 1 and 2 had taken over possession of the said premises by breaking open the padlock. The learned Trial Judge by order no. 469 dated 7. 6. 91 rejecting the application of Mukunda Chandra Halder held and confirmed his previous finding that the said premises is not incharge of the Receiver. In the said order, it was further held by the Trial Court that it did not find any illegality alleged to have been committed by the defendant Nos. 1 and 2 in taking possession of the premises no. 91, Mahatma Gandhi Road where the office of the partnership firm was situated. In the said order, it was further held by the Trial Court that it did not find any illegality alleged to have been committed by the defendant Nos. 1 and 2 in taking possession of the premises no. 91, Mahatma Gandhi Road where the office of the partnership firm was situated. High Court was moved against the said order in revision but the revisional application was rejected as submitted by Mr. Roychowdhury, the learned Counsel appearing for the opposite party nos. 1, 3 and 4 in both the C. Os. It further appears from the Lower Court Records that in order no. 489 dated 11. 5. 92, the trial court again noted that the Advocate-Receiver was discharged on 25. 4. 75 subject to the passing of an accounts. This order was passed on the application of the defendant no. 5 Arup Ranjan Halder. In the aforesaid order, it has been held by the trial court as follows :-"now after the abatement of the suit and after discharge of the Receiver, the position of the Receiver is that he is holding the property for the benefits of the parties to the suit. The Receiver present position must be deemed to be the possession of the true owner. "there was, however, no deviation from the earlier orders of the trial court noted above that the Advocate Receiver Mr. Dey was never appointed Receiver in respect of the premises at 91, Mahatmas Gandhi Road. This order was challenged in revision before this High Court in C. O. 1920 of 1992 but the Division Bench dismissed the revisional application, by its order dated 26. 11. 93. ( 6 ) IT is interesting to note that thereafter Mukunda Halder the second revisionist filed an application under Order 40 Rule 4 of the Code of Civil Procedure in the trial Court on 3. 6. 92 to remove the Advocate-Receiver Mr. Dipen Dey and to appoint another Advocate in his place and also to pass an order for sale of his personal property being a flat at no. 66, Lansdowne Road, Calcutta and to pay the sale-proceeds to the applicant against the lost sustained by him to some extent and also to sell the shares of the defendant no. 1 and the heirs of the defendant no. 2 in respect of the property at premises no. 91, Mahatma Gandhi Road. 66, Lansdowne Road, Calcutta and to pay the sale-proceeds to the applicant against the lost sustained by him to some extent and also to sell the shares of the defendant no. 1 and the heirs of the defendant no. 2 in respect of the property at premises no. 91, Mahatma Gandhi Road. In paragraph 3 of the said application it has been stated that the applicant Mukunda had suffered serious financial loss of not less than Rs. 5 Crores due to gross negligence and wilful default on the part of the Advocate-Receiver. It has been alleged there that the premises at no. 91, Mahatma Gandhi Road, Budge Budge has been let out to many parties and the defendant no. 1 and the heirs of the defendant no. 2 have collected at least Rs. 25 lakhs from them and that the said defendant no. 1 and the heirs of the defendant no. 2 have committed theft of motor parts valued at Rs. 25 lakhs. In the said application, it has been stated that for such loss, the said defendants and the Advocate-Receiver are responsible for which the Advocate Receiver should be removed and his parsonal property should be sold to the benefit of the said Mukunda. The trial court by its order no. 513 dated 11. 2. 94 in a very peculiar manner dealt with the said application and allowed it most illegally without going into the merit at the application, out of respect and the defendant nos. 3 and 4 the present two revisionists viz. Mukunda and tapan Tanay Halder were appointed as Receivers in his place without any remuneration. Against he said order passed by the trial court 3 (three) Misc. Appeals were preferred being M. A. no. 77/94, 78/94, 78/94 and 98/94 by Gopal Chandra Halder, Smt. Nilima Halder, Arup Ranjan Halder and Subhrandgshu halder, Mukunda Chandra Halder and Tapan Tanay Halder were respondent nos. 1 and 2 the Advocate-Receiver Mr. Dipen Dey was the pro-respondents. The aforesaid Misc. Appeals were allowed by the learned District Judge-in-Charge, 24-Paraganas (South) by the impugned order dated 24. 5. 94. By the impugned order, all the Misc. Appeals were allowed and the order no. 513 dated 11. 2. 94 was set aside and the application filed by Mukunda under Order 40 Rule 4 of the Code of Civil Procedure was rejected. Appeals were allowed by the learned District Judge-in-Charge, 24-Paraganas (South) by the impugned order dated 24. 5. 94. By the impugned order, all the Misc. Appeals were allowed and the order no. 513 dated 11. 2. 94 was set aside and the application filed by Mukunda under Order 40 Rule 4 of the Code of Civil Procedure was rejected. The learned District Judge-in-Charge has held in the impugned order that the original suit having abated and the Advocate-Receiver having been discharged there was no scope for the trial Court to appoint a new Receiver. The learned District-in-Charge in his impugned order has referred to an order passed by the Trial Court at an earlier stage where it was made clear that no further petitioner will be entertained by the parties in connection with the subject matter of the suit. Accordingly, the learned First Appeal Court has held that the subsequent application under Order 40 Rule 4 of the Code of Civil Procedure is barred and us such not maintainable in view of the above order of the Trial Courts. The learned First Appeal Court has further held that the Advocate-Receiver was discharged by the trial Court under order no. 210 dated 25. 4. 75 and that the property at no. 91, Mahatma Gandhi Road was never in-charge of the Receiver. In this connection, the learned First Appeal Court referred to the order no. 469 passed by the Trial Court on 7. 6. 91. It would be helpful to put the relevant part of the Appeal Court's judgement below :-"it is made clear that there is no suit and the question of filing the application under Order 40 Rule 4 of the CPC, in a disposed of suit is misconceived one and is not maintainable in law. The order passed by the learned Assistant District Judge in the court below is without any reasoning and has no legs to stand. The order is unreasonable. The learned Assistant District Judge in the court below did not go through the facts, circumstances and the earlier orders passed in this context. Thus, there are sufficient reasons to interfere into the impugned order passed by the learned Assistant District Judge in the court below which is not consistent with law. " ( 7 ) IN the first revisional application being C. O. No. 1712 of 1994 Mr. Tapan Tanay Halder the defendant no. Thus, there are sufficient reasons to interfere into the impugned order passed by the learned Assistant District Judge in the court below which is not consistent with law. " ( 7 ) IN the first revisional application being C. O. No. 1712 of 1994 Mr. Tapan Tanay Halder the defendant no. 4 in the Original Suit has appeared in person. It may be noted that he is a practising Advocate of this Court. I have already noted that the defendant no. 3 Mukunda is the applicant in the second revisional application. It has been submitted on behalf of both the applicants before this Court that the impugned order passed by the learned First Appeal Court must be set aside under section 115 of the Code of Civil Procedure for having been passed with illegally and with material irregularity. In order to appreciate the contentions of the petitioners in the present two revisional applications, it would be helpful to refer to the provisions of Order 40 Rule 4 which provide as follows :-ORDER XL Rule 4 : where a receiver (a)fails to submit his accounts at such periods and in such form as the Court directs. or (b)fails to pay the amount due from him as the Court directs. or (c)occasions loss to the property by his wilful default or gross negligence, the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver. In the instant case, the provisions of clause (a) and (b) have not ben invoked by the Court below. In the application under Order 40 Rule 4 filed on behalf of Mukunda, it has been stated that the Advocate-receiver has occasioned loss to the property and 91, mahatma Gandhi Road by his wilful default or gross negligence. Accordingly, the case would come under Order XL Rule 4 (c) of the Code of Civil Procedure. In course of hearing of the instant applications, the learned Counsels appearing for both the parties and Mr. Tapan Tanay Halder himself have referred to the different orders passed by the Trial Court and by the Lower Appellate Court and also by the High Court at different points of time. In course of hearing of the instant applications, the learned Counsels appearing for both the parties and Mr. Tapan Tanay Halder himself have referred to the different orders passed by the Trial Court and by the Lower Appellate Court and also by the High Court at different points of time. But nowhere in the Lower Court records, there is any finding referring to the wilful default or gross negligence on the part of the Advocate Receiver Mr. Dipen Dey in respect of the property at 91, Mahatma Gandhi Road. On the other hand, as has been rightly submitted by Mr. Roychowdhury, the relevant orders passed by trial Court which I have already noted above, clearly show that the premises no. 91, Mahatma Gandhi Road was never the subject matter of the suit nor any Receiver was appointed in respect of the same and above all Mr. Dipen Dey was never appointed as supervisory Receiver in respect of the property at 91, Mahatma Gandhi Road. The records, on the other hand, show parties were appointed as Receivers in respect of different sets of the partnership assets as described in the schedule of the plaint vide order dated 18. 7. 72 passed by the learned Additional District Judge, 2nd Court, at Alipore in Misc. Appeal No. 198 of 1972. On the basis of this order, this High Court in revision asked the trial Court to appoint an Advocate-Receiver to control and supervise the partnership business left in-charge of the party Receivers. Accordingly, the trial court passed order no. 87 dated 2. 6. 73 appointing Mr. Day as a supervisory-Receiver. mr. Roychowdhury the learned Counsel appearing for the opposite party nos. 1, 3, and 4 and Mr. Bhattacharjee the learned Counsel appearing for the opposite party no. 2 in both the revisional application have submitted that the premises no. 91, mahatma Gandhi Rode was never the subject matter of the partnership assets in the original suit, brought by Haralal Halder. The plaint-schedule does not include the premises no. 91, as a partner ship property. In the recitals of the plaint also, this has not been described as a partnership property. I have already noted the orders passed by the Trial Court wherein it has been specifically held that the premises no. 91 was never given incharge of the Advocate-Receiver Mr. Dipen Dey. 91, as a partner ship property. In the recitals of the plaint also, this has not been described as a partnership property. I have already noted the orders passed by the Trial Court wherein it has been specifically held that the premises no. 91 was never given incharge of the Advocate-Receiver Mr. Dipen Dey. It is clear from the aforesaid orders passed by the Trial Court the Advocate-Receiver never dealt with the property at 91, Mahatma Gandhi Road at any point of time while acting as the supervisory receiver. It is, however, on record that the defendant nos. 1 and 2 have taken over possession of the said premises by breaking open padlock. The learned Trial Judge in his order no. 469 dated 7. 6. 91 has held that they have rightly done so and that the Advocate-Receiver had nothing to do in this regard for being not in-charge of the said property. ( 8 ) UNDER the circumstances, it has been rightly submitted by Mr. Roychowdhury that there was no scope for Mukunda to file in application under Order XL Rule 4 of the Code of Civil procedure. in this perspective, the application under Order XL Rule 4 appears to be a misconceived one so far as the O. P. Advocate-Receiver Sri Dipen Dey is concerned. Furthermore, the application itself is vague. There is no specific allegation against the Advocate-Receiver how he has caused loss of Rs. 5 crores to the applicant. In the application, the defendant no. 1 and the heirs of the defendant no. 2 have been made jointly responsible for the loss along with the Advocate Receiver. But no particulars have been furnished to substantiate the allegations. Mr. Tapan Tanay Halder, the petitioner in the first revisional application has made strenuous efforts to support the application under order XL Rule of the Code of Civil Procedure filed by Mukunda and to challenge the impugned order passed by the First Appeal Court but although I have heard him at length I have not been able to notice any substance in his submissions. On the other hand, it is admitted that a suit for partition in respect of the property at no. 91, Mahatma Gandhi Road has been brought by Tapan Tanay Halder against others which is still pending. Mr. Dey the opposite party no. On the other hand, it is admitted that a suit for partition in respect of the property at no. 91, Mahatma Gandhi Road has been brought by Tapan Tanay Halder against others which is still pending. Mr. Dey the opposite party no. 6 Advocate-Receiver in his affidavit-in-opposition has emphatically stated that he never took charge of the premises no. 91, mahatma Gandhi Road and was never in possession of the same and that he never dealt with the same. There is no reason to reject his contention in view of the above circumstances on record. Mr. Santany Mukherjee, the learned Counsel appearing for the petitioner Mukunds in the second revisional application has submitted on the responsibility of a Receiver with reference to Halsbury's Laws of England, Vol. 39 Para 920 to 922 on Receivers at page 464 but in will be a point-less academic exercise to discuss the law on this point in view of the factual matrics of this case as accepted by the Court below. The relevant orders passed by the court below have already been referred to in this regard. It has been submitted by Santanu Mukherjee that the learned Advocate-Receiver has not yet submitted final report or accounts in the trial Court in compliance with the Court's order but that is separate aspect of the matter which is to be looked into by the trial Court. Furthermore, in the application under Order XL Rule 4 of the Code of Civil Procedure, this aspect of the matter was not urged. ( 9 ) MR. Halder, the applicant in the first revisional application and the learned Counsel appearing for the petitioner in the second revisional application has, however, drawn my attention to the observation of the Appeal Court making it clear in the impugned order that the said order "will not affect the parties to the appeal to take steps under Order XL Rule 4 of the Code of Civil Procedure against the learned Advocate-Receiver in an appropriate proceedings, if they so like". But this observation does not take the petitioners to a better platform for challenging the impugned order. It might be an accidental slip on the part of the learned First Appeal Court to make such observation while for setting that by the impugned itself it rejected the application filed by the defendant no. But this observation does not take the petitioners to a better platform for challenging the impugned order. It might be an accidental slip on the part of the learned First Appeal Court to make such observation while for setting that by the impugned itself it rejected the application filed by the defendant no. 3 Mukunda under Order 40 Rule 4 of the Code of Civil Procedure. ( 10 ) ACCORDINGLY, I don to find any substance in the present two revisional applications. From the materials on record, it does not appear that by passing the impugned order, the learned First Appeal Court has acted in the exercise of its jurisdiction illegally or with material irregularity and that if the said order is allowed to stand, it would occasions a failure of justice or cause irreparable injury to the petitioners. There is no jurisdictional error apparent on record. The learned First Appeal Court has rightly allowed the Misc. Appeals by passing the impugned order setting aside the order passed by the Trial Court which displays a total non-application of mind. Both revisional applications are dismissed. Both the applicants namely Tapan Tanay Halder and Mukunda Chandra Halder are directed to pay costs to the Advocate-Receiver o. p. No. 6 Mr. Dipen Dey assessed at 200 G. ms. each to be paid within 3 (three) weeks from this date. No costs to other parties. All interim orders are vacated. The Lower Court Records ne sent down at once. (S. N. Mallick, J.) letter preyer for stay by Tapan Tanay Halder (in person ). is rejected. Application dismissed.