RAMESH CHANDRA DAS Vs. KISHORE CHANDRA DAS

JUDGEMENT

(1.) Both the appeals arise out of T.S. No.223 of 1990 pending in the Court of the learned Civil Judge (Senor Division), Bhubaneswar wherein the appellant in F.A.O. No.274 of 2006 is the defendant and the appellants in F.A.O. No.286 of 2006 are the plaintiffs.

(2.) Both the appeals have been filed challenging the order dated 3.7.2006 passed in I.A. No.416 of 2006 removing the defendant No.1 -Ramesh Chandra Das as receiver as well as declining the prayer of the plaintiffs 1 to 3 appoint one of them as a receiver. The suit had been filed for partition of if Schedule 'A' and 'B' properties comprising of residential house and market complex respectively, in the said suit the appellants in F.A.O. No.286 of 2006 are the plaintiffs whereas the respondent in the said appeal is the defendant No.1. Defendant No.1 is the brother of plaintiffs 1 to 3 and the plaintiff No.4 is mother of the plaintiffs 1 to 3 and defendant No.1. Defendants 2 to 7 are the tenants in respect of different shop rooms occupied in the market complex. During pendency of the suit dispute arose regarding collection of rent from the shop rooms and therefore an application was filed vide Misc. Case No.265 of 1990 for appointment of a receiver in respect of the B schedule property, i.e. market complex. Trial Court after hearing the parties by order dated 10.5.1991 proposed to appoint a third party receiver and directed for filing of panel of names. The said order of the trial Court was challenged by the defendant No.1 in M.A. No.533 of 1991 before this Court. During pendency of the M.A. this Court by order dated 13.11.1991 directed the defendant No.1 to collect monthly rent from the market complex and to deposit the same in fixed deposit. The appeal was finally disposed of on 11.11.1993 appointing defendant No.1 as receiver on the following terms and conditions. (i) Defendant No.1 as receiver was directed to deposit rent collected in nationalized bank in fixed deposit. (ii) The receiver was directed to deposit rent collected each month in fixed deposits. (iii) All deposits shall be subject to control of the Court and the defendant No.1 -receiver cannot withdraw the same without permission of the Court. (iv) From and out of the deposits, the receiver can apply to the trial Court and withdraw amounts either paid or to be paid by him towards revenue charges or charges of the local bodies. (v) Electricity charges shall be paid by the respective tenants. (vi) The defendant No.1 receiver shall take care that no tenant defaults in payment of the rent due. If, he tolerates a defaulter, it will be a misconduct. (vii) The receiver can evict a defaulter or a tenant, who has otherwise misconducted with permission of the trial Court. (viii) Liberty was given to the parties to apply to the trial Court to modify the conditions imposed in the said judgment for addition of further terms or deletion of a particular term which cannot be effectively worked out. While disposing of the appeals this Court further directed that for the purpose of discharge of receiver and appointment of another or change in condition, the order shall be deemed to have been passed by the trial Court. After disposal of the aforesaid appeal with the above terms and conditions dispute again arose between the co-sharers regarding payment of outstanding electricity dues in respect of the residential portion of the suit property mentioned in A-schedule and accordingly an application was filed before the trial Court for payment of arrears outstanding electricity dues by the receiver. Said application was dismissed by the trial Court on 26.6.1997 and challenging the said order, the plaintiffs filed Civil Revision No.183 of 1997 before this Court and the same was disposed of by judgment dated 19.6.1998 with the following directions. (i) Various bills should be paid out of the rent collected and deposited by the defendant No.1 -receiver as per the directions of this Court. (ii) If the bills in respect of the entire disputed properties including the residential portion are paid out of the deposited amount and ultimately it is found that the defendant No.1 -receiver is entitled to the rents collected from the various tenants as directed by the trial Court, the plaintiffs and other co-sharers shall be liable to reimburse the defendant No.1-receiver to the extent of their share and a proper direction shall be made to that effect by the trial Court. After disposal of the revision the trial Court passed a preliminary decree in 1998 wherein it was declared that each of the plaintiffs shall be entitled to 1 /5th share and the defendant No.1 shall also be entitled to 1/5th share. After passing of the preliminary decree, final decree proceeding has been filed before the trial Court. During pendency of the final decree proceeding again dispute arose between the co-sharers in relation to collection of rent and payment of electricity dues. The plaintiffs filed an application before the trial Court seeking for permission to withdraw some amount from the deposits made by the receiver for payment of the dues such as electricity, land revenue, municipal tax and other statutory dues. Said application was rejected by the trial Court on 19.7.2001 on the ground that the respondent No.1-receiver has not furnished accounts and there is nothing on record to show that disconnection notice relates to 'B' Schedule property. Challenging the said order dated 19.7.2001 the plaintiffs again filed Civil Revision No.269 of 2001 before this Court. Said Civil revision was disposed of on 18.12.2001 wherein this Court observed that the arrangement made should continue till either the receiver is discharged or final decree proceeding is concluded. It was further directed that the defendant No.1-receiver shall be entitled to collect rent from the tenants as per the previous arrangement and deposit the same in the manner directed for the entire period during which the suit was pending and if any of the tenants refuse to pay rent to the receiver, it will be open for the receiver to take steps for eviction. While the matter stood thus it is alleged that the defendant No.1 -receiver started undertaking massive construction and renovation work. For prohibiting the receiver from doing so the plaintiffs filed an application for restraining the defendant No.1 -receiver from undertaking any construction or renovation of market complex at huge cost. Trial Court after hearinq the parties on 11.10.2002 restrained the receiver from undertaking any massive construction in the aforesaid premises beyond the limit circumscribed by this Court till disposal of the final decree proceeding without permission or consent of the plaintiffs. It is alleged that in spite of the restraint order of the trial Court the defendant No. 1 receiver incurring huge expenses and undertook massive renovation work. On the above allegations, I.A. No.506 of 2002 has been filed before the trial Court and the said application for violating the order of injunction is pending disposal. In October, 2003 the defendant No.1-receiver filed a statement of Accounts for the period from October, 1998 to September, 2003 showing collection of rents and expenses. Objection was filed to the aforesaid Statement of Accounts alleging misconduct, misappropriation, etc. The plaintiffs also filed I.A. No.416 of 2004 to discharge the defendant No.1- receiver and appoint one of the plaintiffs 1 to 3 as receiver on the same terms and conditions. Objection was filed to the said application by the defendant No.1-receiver. During pendency of I.A. No.416 of 2004, defendant No.1 -receiver filed another statement of accounts for the period from October, 2003 to November, 2005. Not being satisfied with the accounts submitted by the defendant No.1 -receiver the trial Court directed the receiver to submit a detailed statement of accounts from 1991 till end of June, 2006 as per the proforma supplied by the trial Court. It is alleged by the plaintiffs that the receiver did not disclose the required information as required in the said proforma and submitted an incomplete and incorrect statement of account from 1.10.2003 to 31.11.2005. The trial Court after hearing the parties in I.A. No.416 of 2004 by order dated 3.7.2006 discharged the defendant No.1 from receivership but declined to appoint any one of the plaintiffs 1 to 3 as receiver in his place. Challenging the aforesaid order, the defendant No.1-receiver has filed F.A.O. No.274 of 2006 and the plaintiffs have filed F.A.O. No.286 of 2006 challenging that part of the trial Court order where the prayer for appointing one of the plaintiffs 1 to 3 as receiver was turned down.

(3.) Shri G. Mukherji, learned counsel appearing for the defendant No.1 -receiver challenged the impugned order dated 3.7.2006 discharging the defendant No.1 from receivership by submitting that the grounds on which the defendant No.1 has been discharged from receivership are unsustainable. According to Sri Mukherji for certain period the trial Court injuncted the receiver from receiving rent from the tenants and therefore the receiver informed the tenants to deposit rent in separate bank account opened for the purpose. The plaintiffs wrote letters to the tenants stating therein that in terms of the decree rent should be split up in to five Parts and paid to the parties in terms of the shares allotted to them by the trial Court in the preliminary decree. In view of such dispute the tenants took advantage and chose not to pay rent. Some of the tenants started depositing rent in the trial Court. This position continued till January, 2001 when this Court in Civil Revision No.269 of 2001 restored the powers of the receiver. By that time there was huge default on the part of the tenants and it was not possible to collect all the outstanding rent at a time and the same had to be collected in installments spread over a period of time. According to Sri Mukherje, from the accounts submitted up to November, 2005 it will be seen that not a single tenant defaulted in payment of rent and the entire arrear had been collected. Only in respect of one tenant the arrear could not be collected and therefore notice under the Transfer of Properties Act was served and C.S. No.318 of 2004 has been filed in the civil Court for eviction of that tenant and for recovery of arrear rents and damages. Coming to know about filing of the suit, the said tenant vacated the premises and accordingly the suit has been amended for recovery of arrear rent and damages only and the said suit is pending disposal. On this score Sri Mukherji, learned counsel appearing for the defendant No.1 - receiver submitted that there has been no default on the part of the receiver in collecting rent and depositing in bank in fixed deposits as directed by this Court. It was further submitted by Sri Mukherji that electricity bills, water bills, and other statutory dues are raised in regular cycles and required payment within a stipulated date to avoid default clause. Such payments were made with bona fide belief that this Court never meant that for incurring such expenses repeated motions would be made to the trial Court for leave to meet the expenses and that such amount should be obtained out of the fixed deposits, which otherwise would have forced the receiver to break the fixed deposits before expiry of it's term. Had he done so, there would have been loss to the estate in terms of the interest from the fixed deposits. Shri Mukherji, submitted that the receiver has managed to obtain higher rent from time to time as is evident from the statement of accounts. For the purpose of obtaining higher rent some renovation had to be undertaken and renovation work undertaken by the receiver is not massive as alleged by the plaintiffs and only required renovation had to be done to maintain the property and to obtain higher rent.