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1997 DIGILAW 927 (DEL)

RAJINDER SINGH v. GOGO RANI

1997-11-17

K.S.GUPTA

body1997
K. S. Gupta,j. ( 1 ) DEFENDANT No. 1 has filed this application under Section 151 Civil Procedure Code alleging that the plaintiff on application under Order XXXIX Rules 1 and 2 Civil Procedure Code obtained ex-parte injunction against defendant No. 1. On application for vacation of the ex- parte injunction being filed by defendant No. 1, the order was modified and Shri Rajiv Awasthi, Advocate was appointed as receiver to take over the possession of the premises and the machinery. Feeling aggrieved, plaintiff filed FAO (OS ). No. 189/95 against the order of appointment of Shri Awasthi as receiver and the same was disposed of by the Division Bench by an order dated November 9, 1995. It is alleged that despite the order passed by the Division Bench, the plaintiff has neither paid the profit to defendant No. 1 of his share nor has she discharged the liability of the Bank. It was prayed that in place of the plaintiff, defendant No. 1 may be appointed as a court receiver. ( 2 ) IN the reply plaintiff has not denied the passing of an ex-parte injunction order on the application filed by her under Order XXXIX Rules 1 and 2 CPC, modification of that order thereby appointing Shri Rajiv Awasthi as receiver, filing of FAO (OS) No. 189/95 by the plaintiff and disposal of the appeal by the Division Bench vide order dated November 9, 1995,as alleged by defendant No. 1. However, it is stated that the original account books which were produced by the plaintiff before the Division Bench, have not been returned to her till date despite her having approached Registry on a number of times. . Monthly statements of account, therefore, could not be filed by her. She has kept kacha accounts and will be completing the accounts after original account books are returned to her. It is alleged that there is no order for payment of the amount of profit to defendant No. 1 or to discharge the liability of the Bank by her. Defendant No. 1 has no experience for running the business of printing press and he cannot be appointed as receiver in her place, as claimed. ( 3 ) CASE was fixed for arguments on October 27, 1997 but on that date nobody appeared for the plaintiff. Defendant No. 1 has no experience for running the business of printing press and he cannot be appointed as receiver in her place, as claimed. ( 3 ) CASE was fixed for arguments on October 27, 1997 but on that date nobody appeared for the plaintiff. I have heard Shri R. K. Kapoor appearing for defendant No. 1 and have been taken through the record by him. ( 4 ) COPY of the order dated November 9,1995, passed in FAO (OS) No. 189/95 by the Division Bench is placed on the file and the portion thereof which is relevant for deciding the controversy at hand, reads thus:- "appointment of the Advocate Receiver would result in heavy drain to the resources of the firm as his fee alone is Rs 7,000. 00. It is also not disputed that neither the appellant nor the first respondent made any application for appointment of a receiver. It is well settled thareceiver can be appointed where there are strong and compelling reasons which are necessary for interference with the possession of the party otherwise his possession ought not to be disturbed. In the present case it will be in the interest of both the parties if the Printing Press is allowed to work. This would be possible if instead of an Advocate Receiver, the Appellant is appointed as a Receiver and is allowed to run the Printing Press which she was running before the appointment of the Advocate Receiver. However , the interest of the respondent has to be secured while the Appellant keeps on running the business as a Court Receiver now the question is how the interest of the Respondent can be secured. In this regard it needs to be noticed that the first Respondent in his application under Section 30 of the Arbitration Act has stated that the partnership was making profit in the years 1988-89, 1989-90 and 1990-91. One of the ways to secure the rights and interests of the respondent is to direct the appellant to deposit profits in the proportion of the shares of each of the partner. Calculated on the basis of the profits of the aforesaid three years plus some amount over and above that amount on the ground that the profits for subsequent years would be more. Calculated on the basis of the profits of the aforesaid three years plus some amount over and above that amount on the ground that the profits for subsequent years would be more. However , we leave the method and manner to secure the interest of the respondent to the learned Single Judge while the business is run by the appellant as a Receiver. FOR the foregoing records, we modify the order0 of the learned Single Judge to the extent that instead of Sh. Rajiv Awasthi, Advocate the appellant is appointed as a Receiver. She will maintain proper accounts of the business and file monthly statement of accounts in the suit and will also above by any condition which the learned Single Judge may impose on her to secure the interest of the first respondent. ( 5 ) AFTER the disposal of the appeal, this court has not imposed any conditions on the plaintiff to secure the interest of defendant No. 1 as regards payment of profit of his share from the printing press. As is evident from the appellate order, it is silent in regard to discharge of liability of the Bank by the plaintiff. As may be noticed from the reply filed by the plaintiff, business has made net profit of Rs. 28,532. 40p during the period April 1, 1995 to July 15,1996 for which she has kept kacha accounts. Accordingly to her, she has not been able to file the monthly statements of account as per the appellate order as the original account books which were produced before the Division Bench have not been made available to her by the Registry. Since ne put in appearance on behalf of the plaintiff on the date the arguments were heard, I did not have the advantage of ascertaining from the plaintiff if after the filing of the reply account books were returned to her by the Registry or not. Explanation furnished by the plaintiff for non- submission of the monthly statements of account as per the order dated November 9, 1995, thus seems to be plausible. There is no ground for appointing defendant No. 1 as court -receive in place of the plaintiff. Registry will ensure that the account books if not already returned are delivered to the plaintiff within five days hereof and compliance report sent to the court. There is no ground for appointing defendant No. 1 as court -receive in place of the plaintiff. Registry will ensure that the account books if not already returned are delivered to the plaintiff within five days hereof and compliance report sent to the court. Plaintiff will file monthly statements of account as per the aforesaid order. Application is dismissed. ( 6 ) LIST on 16-2-1998 for consideration of imposition of condition, if any on the plaintiff to secure the interest of defendant No. 1 as per the appellate order.