Judgment IA Nos. 497/2014 (filed on behalf of impleaded respondent M/s. Shree Rathnam Restaurant Pvt. Ltd. to modify the order dated 17.4.2013) & 17214/2013 (under Section 151 CPC filed on behalf of the petitioner for appointment of fresh Receiver) 1. By this order, I would dispose of two applications, one being IA 17214 of 2013 filed by the petitioner for appointing a new Receiver pursuant to order dated April 17, 2013 and IA 497/2014 filed by M/s. Shree Rathanam Restaurant Pvt. Ltd. (‘SRRP’, in short), impleaded respondent seeking directions for working of Receiver. 2. The brief facts, are, an agreement dated May 01, 2005 was executed between the respondent Nos. 1 to 3 and M/s. Sagar Ratna Hotels Pvt. Ltd. (‘SRHP’, in short) in respect of a commercial premises bearing No. 33, 35 & 36, Pocket C-9, Sector 7, Rohini, Delhi situated on the ground and first floors, whereby, it was agreed by the said respondents to provide the same to SRHP for running a restaurant on the terms and conditions stipulated therein. One of the terms being that the duration of the agreement was for a period of ten years from the date of opening the restaurant, which could be increased further for such a period on the terms and conditions, as may be mutually agreed between the parties. Another important term as stipulated in Clause 19 of the said agreement is that both the parties could terminate the agreement by serving three months notice in writing in the event of there being violation of any of the terms and conditions thereof. In the case of termination, SRHP was to hand over the possession of the premises along with the fixtures etc. to the respondents. Further, one of the important term as stipulated in Clause 20 is that in the event of expiry of the agreement, the respondents could not use the name “SAGAR RATNA” or any other name identical to it, and could not continue the restaurant business for a further period of seven years. After the agreement dated May 1, 2005, another supplementary agreement dated June 17, 2011 was executed between the respondents, the petitioner herein and SRHP. By virtue of this agreement, the present petitioner acquired all the rights of SRHP in respect of the restaurant business that was being carried by SRHP in the suit premises. After the agreement dated May 1, 2005, another supplementary agreement dated June 17, 2011 was executed between the respondents, the petitioner herein and SRHP. By virtue of this agreement, the present petitioner acquired all the rights of SRHP in respect of the restaurant business that was being carried by SRHP in the suit premises. All the terms and conditions as stipulated in agreement of May 1, 2005 executed between the respondents and SRHP were to be applicable to the petitioner herein. In other words, the petitioner stepped into the shoes of SRHP qua the suit premises and the restaurant business being carried therein on all the terms and conditions of the agreement dated May 1, 2005. 3. It is the case of the petitioner that the respondents have unauthorizedly dispossessed it in connivance with some of its staff officials on 24.09.2012. It is also noted that notice of termination of the agreement was sent by the respondent Nos. 1 to 3 to the petitioner on September 23, 2012. The respondent Nos. 1 to 3 raised certain disputes and differences. The petitioner was called by the respondent Nos. 1 to 3 for rendition and settlement of accounts and was asked to give the possession of the premises and fixtures immediately. 4. Suffice to state, the aforesaid OMP was filed by the petitioner under Section 9 of the Arbitration and Conciliation Act, 1996 seeking for certain interim reliefs. The said petition was decided by this Court vide order dated April 17, 2013, wherein this Court had passed the following order: “6. With the consent of the both the parties, the Receiver is to be appointed till such time, the disputes and differences between the parties are settled by the Arbitrator. Accordingly, Sh. J.P.Sharma, Addl. District & Sessions Judge (Retd.) is appointed as Receiver as regard to the affairs and conduct of the restaurant business by the respondents themselves or through M/s. Shree Rathnam in the premises i.e. 33, 35 & 36, Pocket C-9, Sector 7, Rohini, Delhi. Sh. J.P.Sharma would device his own means and methods for maintaining the details of the accounts of the business including the expenses and sales etc. Sh. J.P.Sharma would device his own means and methods for maintaining the details of the accounts of the business including the expenses and sales etc. He would be at liberty to control and regulate the business in a computerized manner, if not already done, and is also authorized to employ some suitable Manager of his own choice to look after the day to day business & affairs of the restaurant business. He will also be at liberty to open an account and operate the same for the purpose of conduct of the business. His remuneration is fixed at Rs. 50,000/- per month exclusive of other out of pocket expenses including conveyance etc. The learned counsel representing both the parties have requested for the appointment of Arbitrator in the present proceedings itself to avoid another litigation in this regard. With their consent, Sh. Dinesh Dayal, Addl. District & Sessions Judge (Retd.) is appointed as an Arbitrator. His remuneration would be Rs. 50,000/- per sitting. On being informed about the arbitration proceedings nearing conclusion, the Receiver shall submit his report with accounts to Arbitrator. The learned Arbitrator shall take into consideration the detailed report of Receiver while making an award. All these expenses of the Receiver and Arbitrator shall be borne by the parties equally. 7. Copy of the order be sent to Sh. J.P.Sharma and Sh. Dinesh Dayal, AD&SJ (Retd.) and also be given dasti to both the parties. The parties are advised to appear before Sh. J.P.Sharma (Receiver) on 22.04.2012 at 3.00 p.m. and before Sh. Dinesh Dayal on 23.04.2012 at 3.00 p.m”. 5. It is noted that an IA being 6855/2013 was filed by the respondent Nos. 1 and 3 seeking modification of order dated April 17, 2013. The said application was dismissed by this Court on April 29, 2013. Against the said order, the respondent Nos. 1 and 3 had filed an appeal before the Division Bench vide FAO(OS) 283/2013. The said appeal was withdrawn by the respondent Nos. 1 and 3. I note, that, SRRP had filed applications i.e. IAs 9260-61 of 2013 under Order 1 Rule 10 CPC and under Section 151 CPC. The said applications were listed on May 29, 2013, on which date, a notice was issued to the non applicants, returnable on October 25, 2013. The said appeal was withdrawn by the respondent Nos. 1 and 3. I note, that, SRRP had filed applications i.e. IAs 9260-61 of 2013 under Order 1 Rule 10 CPC and under Section 151 CPC. The said applications were listed on May 29, 2013, on which date, a notice was issued to the non applicants, returnable on October 25, 2013. The SRRP filed an appeal before the Division Bench, challenging the order dated April 17, 2013 and May 29, 2013. The appeal initially was listed before the court on July 15, 2013, on which date, the Division Bench had stayed the proceedings before this Court. Thereafter, when the matter was listed on August 23, 2013, learned counsel for the SRRP had sought liberty to withdraw the appeal to approach this Court to iron out practical difficulties arising as a result of order dated April 17, 2013 with regard to the working of the Receiver, to which, the learned counsel for the petitioner herein had consented. Pursuant thereto, SRRP has filed one of the application being IA 497/2014, which is under consideration. 6. That apart, the stand of the petitioner in IA 17214/2013 is that Mr. J.P.Sharma (Retd. ADJ), the Receiver initially appointed has resigned. This fact has been noted by this Court in its order dated May 13, 2013. This Court on the said day itself appointed Mr. R.C.Yaduvanshi, Retd. ADJ as a Receiver in place of Mr. J.P.Sharma. 7. A perusal of the application (IA 17214/2013) filed by the petitioner would reveal that SRRP, despite repeated demands of the Receiver for tendering the accounts and other details, stopped cooperating with the Receiver. The Receiver Mr. R.C.Yaduvanshi had appointed Mr. Hitesh Luthra, Chartered Accountant. Even his requests were not responded. It is the stand of the petitioner in the application that the Receiver had given an interim report whereby, he has observed that the respondent Nos. 1 to 3 Mr. Tarseem Kumar and others and SRRP had not cooperated with him and it is, under said circumstances, the said Receiver has resigned. 8. Mr. Jagjit Singh, learned counsel for the petitioner and applicant in IA 17214/2013 has taken me through the application and the documents filed in both the applications. He would reiterate the submissions as made in the application. He would state that the conduct of the respondent Nos. 8. Mr. Jagjit Singh, learned counsel for the petitioner and applicant in IA 17214/2013 has taken me through the application and the documents filed in both the applications. He would reiterate the submissions as made in the application. He would state that the conduct of the respondent Nos. 1 to 3 as well as SRRP is a mala fide, only to ensure that the order passed by this Court is not implemented and SRRP has its own way in running the restaurant and to thwart the legitimate claim made by the petitioner before the learned Arbitrator. He states that a contempt petition has been filed by the petitioner against the respondents for the illegal acts committed by them. 9. On the other hand, Mr. Ravi Gupta, learned Senior Counsel appearing for the applicant SRRP i.e. applicant in IA 497/2014 would submit that the Receiver had appointed Mr. Hitesh Luthra, Chartered Accountant as an Auditor-cum-Manager, who was supposed to look after the day-to-day function of the restaurant at the premises and not run and manage the restaurant business. He would state that Mr. Luthra, Chartered Accountant sought vital and confidential information from the applicant which are in the realm of trade secrets, which were otherwise not available to the petitioner. The parting out such information sought by the petitioner through the Receiver shall be detrimental to the interest of the applicant company as a whole. He would also state that since the applicant company is being managed and processed on a centralized system basis wherein entire purchases, sale and other resources are employed on a centralized system and even the entire accounts are being managed at the head office, it would be impossible for the company to have a separate system for the outlet at Rohini. According to him, similar is the position with respect to the sales tax and service tax and also with respect to the employment of staff. In the last, it was his submission that the applicant is ready to give to the Receiver all the information regarding audited accounts for the Financial Year 2013-14 and even thereafter, till date. As long as the information sought by the Receiver is, not confidential information, which cannot be divulged in the larger commercial interest of the applicant, the applicant is ready to give it. 10. Mr. Pramod Pandey, learned counsel appearing for the respondent Nos. As long as the information sought by the Receiver is, not confidential information, which cannot be divulged in the larger commercial interest of the applicant, the applicant is ready to give it. 10. Mr. Pramod Pandey, learned counsel appearing for the respondent Nos. 1 to 3, would state, that as the petitioner had quantified its claim before the learned Arbitrator, the appointment of Receiver has lost its relevance. He states that the effect of the agreement for not carrying the business from the premises till 7 years from its expiry is going to expire in May, 2015. Suffice to state, the respondent Nos. 1 to 3 are supporting the relief claimed by the applicant in IA 497/2014. 11. Mr. Jagjit Singh, in response to the submission made by Mr.Ravi Gupta would state that the petitioner is not interested in seeking any confidential information of the applicant SRRP. The endeavour of the petitioner and also the spirit of the order, passed by this Court on April 17, 2013 was to ensure that the income from restaurant, which has a bearing on the claim, should be divulged so that an appropriate award be made by the learned Arbitrator. 12. Having heard the learned counsel for the parties, insofar as IA 17214/2013 seeking appointment of Receiver is concerned, I note that Mr. R.C.Yaduvanshi, Retd. ADJ had tendered his resignation on September 9, 2013. The learned counsel for the parties during the submissions had stated that even Mr. Hitesh Luthra has resigned. The position which emerges is, with effect from September 9, 2013, no Receiver is in place to look after the affairs and conduct of the restaurant business for almost more than one year. I accordingly, appoint Mr. Padam Kant Saxena, Retd. Addl. District & Sessions Judge (Mobile No.9910384668) as the Receiver with regard to the affairs and conduct of the restaurant, strictly in accordance with the order of this Court dated April 17, 2013. He would be entitled to the remuneration as fixed in the said order and would be at liberty to employ a suitable Manager of his own choice to look after the day-to-day affairs and conduct of the business of the restaurant. It is made clear that respondents and the applicant would cooperate with the Receiver in running the affairs and conduct of the restaurant, including the Manager so appointed by the Receiver. 13. It is made clear that respondents and the applicant would cooperate with the Receiver in running the affairs and conduct of the restaurant, including the Manager so appointed by the Receiver. 13. Insofar as IA 497/2014 is concerned, the said application has been filed by the applicant SRRP on January 07, 2014. The prayers made in the said application reads as under: “In view of the above said it is therefore most humbly prayed that Hon’ble Court may please to modify the terms of order dated 17.04.2013 in terms of order passed in FAO(OS) 293/2013 dated 23.08.2013 to the extent of:- (a) Accounts to the extent of commission paid to the respondent i.e. 18% of net sales be directed to be furnished; (b) The petitioner shall be restrained from interfering into the business of the applicant company; (c) Such other and further order(s) which may this court deems fit and proper in the facts and circumstances of the case.” 14. Interestingly, the prayers would show that the same are beyond the liberty granted by the Division Bench in FAO (OS) 293/2013, which I reiterate that the same was to be for pointing out difficulties in working out implementation of the order and nothing more. No such prayer has been made. Rather, the prayers reveal an attempt to circumvent the order passed by this Court on April 17, 2013. In fact, this Court is of the view that, since no Receiver was in place, an application of this nature is not maintainable being pre-mature. 15. The submissions made by Mr. Ravi Gupta, learned Senior Counsel by drawing attention to the various proceedings held by the Receiver would not reveal that the Receiver/Auditor have exceeded their mandate. The endeavour of the Receiver has been to ensure the affairs and conduct of restaurant in terms of the orders passed by this Court. I do not say anything more on this. 16. Insofar as the submission of Ravi Gupta, the respondent Nos. 1 to 3 and the applicant being asked to reveal the confidential information, is concerned, I take on record the statement of Mr.Jagjit Singh, learned counsel that no such information would be asked for. In any case, whether a particular information is a relevant information, confidential information, need to be decided by the Receiver. Surely, the Receiver, would take into consideration the view of the parties before forming an opinion. In any case, whether a particular information is a relevant information, confidential information, need to be decided by the Receiver. Surely, the Receiver, would take into consideration the view of the parties before forming an opinion. No attempt should be made by the applicant to withhold any information on that ground. As I note from the order dated April 17, 2013, the Receiver is required to submit a report with accounts to the learned Arbitrator which has to be taken into consideration, while making the award, I call upon the applicant to submit to the Receiver/Manager the relevant documents/record including the accounts, balance sheet and any information as required/asked for by the Receiver/Manager relevant to the Financial Year 2013-14, and thereafter, till date, with regard to the restaurant at Rohini, within 10 days from the date of this order. The record shall be collated and kept by the Receiver in his custody to enable him to prepare the report for submission to learned Arbitrator. 17. The Registrar General of this Court would transmit the relevant record as received by the Registrar General in terms of letter dated May 09, 2013 of Mr. R.C.Yaduvanshi. Any document, which was part of the proceedings held by the earlier Receiver and is not in possession with the Registrar General, shall be given by the parties to the Receiver so that record on that count is complete. 18. The parties shall appear before the Receiver on March 2, 2015 at 4.00 p.m at the venue to be fixed by the Receiver and in that regard, the Receiver shall inform the parties at least two days before the date of hearing. 19. The applications are disposed of in terms of the above.