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2016 DIGILAW 1069 (CAL)

Shobha Paresh Kampani v. Saryur Rajnikant Kampani

2016-12-23

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
Jyotirmay Bhattacharya, J. : 1. This first miscellaneous appeal is directed against an order being No. 41 dated 10th March, 2015 passed by the Learned Civil Judge (Senior Division) at Sealdah in Title Suit No. 149 of 2010 at the instance of the plaintiff/appellant. 2. By the impugned order, the plaintiff’s prayer for appointment of Receiver over the suit property was rejected by the learned Trial Judge. The instant appeal is directed against the said order passed by the learned Trial Judge. 3. Let us now consider the merit of the instant appeal in the facts of the present case. 4. The plaintiff filed a suit for partition upon a declaration of her share in the suit property, with a further declaration that the deed of gift which was executed by the father of the parties in favour of the defendant no.2, is a product of fraud and misrepresentation and as such the said deed should be cancelled. 5. In such a suit, the plaintiff filed an application under Order 40 Rule 1 of the Code of Civil Procedure praying for appointment of Receiver over the suit property by alleging that though the defendant no.2 has been realising huge sum of money on account of rent and/or licence fees from various tenants and/or licensees inducted in ‘A’ and ‘B’ schedule property but the defendant no.2 is not paying any amount towards her 50% share in the suit property. It is also alleged by her that the huge amount of rates and taxes have now become due to the municipal authority as the defendant no.2 has not paid the rates and taxes of the said premises to the Municipal Authority for a substantial period of time. 6. The defendant no.2 contested the plaintiff’s said application for appointment of Receiver by filing objection contending therein that he is the absolute owner of the suit property and he became the absolute owner of the suit property by virtue of deed of gift executed by his father on 12th April, 2005. He contended that the plaintiff has no share in the suit property. The allegation of creation of such deed of gift by fraud and misrepresentation was denied by him. It was also contended by him that the quantum of rent realisation has not been correctly stated by the plaintiff in the said application. He contended that the plaintiff has no share in the suit property. The allegation of creation of such deed of gift by fraud and misrepresentation was denied by him. It was also contended by him that the quantum of rent realisation has not been correctly stated by the plaintiff in the said application. It is stated by him that he collects a sum of Rs.5,000/- on account of licence fees from the licensee inducted in the basement of the suit premises and he also collects a sum of Rs.7,500/- on account of licence fees from the licensee inducted in the first floor of the suit premises. It was also stated by him that the municipal authority has illegally inflated the annual valuation of the suit property and the corresponding rates and taxes of the suit premises and as such, he has challenged the order of fixation of annual valuation of the said premises and the fixation of rates and taxes by the municipal authority in respect of the suit premises before the Hon’ble High Court in its Constitutional writ jurisdiction. He thus, prayed for dismissal of the plaintiff’s application for appointment of receiver. 7. The learned Trial Judge rejected the plaintiff’s application for appointment of receiver by holding, inter alia, that this is not a fit case where the receiver should be appointed over the suit property. 8. The learned Trial Judge also expressed its doubt about the possibility of the plaintiff’s success in the said suit. The Learned Trial Judge also held that there is no material on record to show some urgency or danger or loss that may be caused to the rights of the plaintiff in respect of the suit property. The learned Trial Judge also held that the plaintiff has also failed to establish that for prevention of any waste to the suit property and/or for protection to the suit property from any imminent danger or loss or reduction in value of the suit property, appointment of receiver is needed. 9. Holding as such, the learned Trial Judge rejected the plaintiff’s application for appointment of receiver. 10. Let us now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. 11. 9. Holding as such, the learned Trial Judge rejected the plaintiff’s application for appointment of receiver. 10. Let us now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. 11. Here is the case where we find that the defendant no.2 is claiming absolute title in the suit property by virtue of a deed of gift executed by his father in his favour on 12th April, 2005. The plaintiff has challenged the legality of the said deed of gift on the ground of fraud and/or misrepresentation. The instant suit was filed sometime in 2010. 12. Though the plaintiff tried to circumvent the difficulties of limitation by alleging fraud and misrepresentation in the plaint but fact remains that the deed through which the defendant no.2 is claiming title in the suit property, is a registered document and once the registration of a document is complete, such registration itself amounts to the public notice about the execution of such deed. 13. However, limitation is a mixed question of law and fact and as such, we do not like to discuss about the maintainability of the suit due to bar of limitation at this stage. 14. However, it is settled law that the conditions which are required to be satisfied for appointment of receiver, are much more stringent than, the conditions which are required to be satisfied for passing an order of injunction. Injunction application is tried on the basis of prima facie case but appointment of receiver is tried on the basis of prima facie title. Unless the party applying for receiver can satisfy the court about his or her prima facie title in the suit property, receiver cannot be appointed on the suit property. 15. We find that the property belongs to the defendant no.2. Until and unless the deed of gift is held to be invalid and/or inoperative for any reason whatsoever by the court of competent jurisdiction, the plaintiff’s claim for title in the suit property cannot be held to be established. 16. As such, we feel that the learned Trial Judge was justified in refusing to appoint receiver over the suit property at this stage. 17. 16. As such, we feel that the learned Trial Judge was justified in refusing to appoint receiver over the suit property at this stage. 17. That apart, we find that the right of the plaintiff to some extent is protected as the court has already passed an order of injunction restraining the defendants from transferring and/or alienating and/or selling the suit property to any stranger during the pendency of the suit. 18. Though the plaintiff has alleged that the defendant no.2 is realising rent from the tenants of the suit premises and is not paying her share but fact remains that no case has been made out that the property is in imminent danger and for preservation and protection of the suit property, receiver should be appointed. 19. Under such circumstances, we hold that the learned Trial Judge did not commit any illegality in passing the impugned order in the facts of the instant case. 20. As such, we decline to admit this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 21. The appeal is, thus, dismissed. 22. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the injunction application. 23. The application for injunction being CAN 8257 of 2016 is thus, deemed to be disposed of. 24. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.